Smith v. Dunning

7 Wend. 135

Opinion

The Court

held that as it did not appear that the sheriff at the time of the levy had notice of the existence of the mortgage, and as the interest of the defendants in the machines was very trifling, the forfeiture under the mortgage occurring w^hjn sjxteen days after the levy made, when the property absolutely vested in the mortgagee, 1 Powell on Mortgages, 3, ,7 Cowen, 290, the sheriff could not be considered as chargeable with neglect of duty in not' having sold previous to the forfeiture, and therefore they gave judgment for him.