Westervelt v. Pinckney

14 Wend. 123

• Court: New York Supreme Court
• Decided: July 15, 1835
• Status: Published

Opinion

By the Court,

Sutherland, J.

The sheriff appears to have done nothing to constitute a levy except to inform the defendant in the execution that he had an execution against him, the parties then being in the defendant’s house, and his furniture being within the view of the sheriff. But the sheriff neither declared that he made a levy, nor did any act to indicate such an intention. The defendant in the execution, if he is to be believed upon oath, certainly did not understand that a levy was made. It is said in Beekman v. Lansing, 3 Wendell, 550, as the result of the cases there referred to, that in order to constitute a levy the officer should enter upon the premises where the goods of the defendant are, and take actual possession of them, (if they are such of which possession can be taken ;) the goods should be brought within his view and subject to his control % and that it is proper also, if not necessary, that an inventory should be taken. The-officer should assert his title to the goods by virtue of the execution, and his acts, in the assertion of his right and the divesting of the possession of the defendant, should be of such a character as would subject him to an action as a trespasser, but for the protection of the execution—they should be public, open and unequivocal; and nothing should be done by him to cast concealment over the transaction. Haggerty v. Wilber, 16 Johns. R. 288. In England, the rule is still more strict. The officer leaves one of his assistants in possession of the goods, or causes an inventory to be made and removes them. 1 Archb. Pr. 293. 1 Maule & Sel. 711. 5 Taunt. 198. The only circumstance from which a- levy could possibly be presumed in this case, is, that the furniture perhaps was, during the life of the execution, within view of the officer and subject to his control. But that of itself is not sufficient, unless the officer at the same time asserts his title to the goods by virtue of the execution. That is enough to constitute him a trespasser, but for the protection of the execution. The mere view of the goods, without any assertion of right to interfere or meddle with them, would subject him to no responsibility. There is no- hardship in compelling an officer to manifest his intention to make a levy by acts or declarations of a clear and unequivocal character. It is calculated to prevent fraud, and to protect the rights of all parties. His acts should also be so open and notorious, that they can be proved if necessary. The practice of conducting these proceedings with secrecy, and studiously concealing all the steps taken previous to the final sale, does not deserve encouragement. It leads to litigation in relation to the title to property, and is undoubtedly frequently used for fraudulent and dishonest purposes.

The execution in this case then was not levied until the middle of April, after the plaintiff’s rent became due; and whether the sheriff had then a right to levy it or not, is a question with which the plaintiff has no concern. He has a right to treat it as a valid act, and it is not for the defendant to deny it, who had due notice of the plaintiff’s claim for rent, and was bound to pay it. To the extent of the rent the money raised by the sale may be considered money had and received to the plaintiff’s use.

Judgment affirmed.