Smith v. Leavitts , 10 Ala. 92 ( 1846 )

ORMOND, J.

When this case was here at a former term, 7 Ala. 175, the points determined by this court were, first, that the institution of a claim to the property levied on by third persons, which was dismissed, was not a bar to a proceeding by the plaintiffs against the sheriff for his neglect in failing to make the money. Second, that the plaintiff in error, (Smith,) having begun to do execution, upon the ji. fa. could not shelter himself from liability, by showing that he had turned over the writ to his successor. Third, that when the defendant is in possession of property, which the sheriff fails to levy on, it devolves on him to show, that it is not subject to levy ; and lastly, that although a levy be actually made, the sheriff may justify the return of the property to the defendant in execution, by showing that it belongs to another. These questions, thus settled, must be considered as the law of this case, not open again to inquiry.

At the last trial of the cause, it appears the sheriff offered to prove, that at the fall term, 1840, of the court, upon a trial of right of property between the present defendants in error, as plaintiffs in execution, and Dawson and Friou claimants, under a deed of trust executed by the defendant in execution, by the judgment of the court, the plaintiffs in execution were non-suited, and the goods levied on by the sheriff ordered to be restored to the claimants. This testimony the court rejected, because the sheriff did not prove, that the claim was regularly interposed, except by his amended return.

It is perfectly obvious, that this question was not passed upon by this court, when the case was last here, and is now open upon this record, we therefore proceed to its examination.

Our statutory proceeding to try the right of property levied on by execution, to which title is asserted by a third person, was designed to prevent the sale of property thus circumstanced, by the sheriff, until the right could be ascertained by a trial between the person claiming it, and the plaintiff in execution. When the affidavit is made, and the bond executed and tendered, which the statute requires, the sheriff has no option, but must deliver the property he had levied on to the claimant, and if the proceeding is conformable to the statute, it is a full, and complete justification of the sheriff, in delivering up to the claimant, the property he had previously levied on.

In this case, for some reason which does not appear, it seems that the sheriff had retained the possession of the property levied on, although he had returned that a claim had been interposed, and bond given to try the right, and the court upon non-suiting the plaintiff in execution, directed the property to be delivered to the claimants. The judgment of non-suit was held to be erroneous, and was reversed by this court. [Leavitts v. Dawson and Friou, 4 Ala. 335.] But until this judgment was reversed it was obligatory and binding on the parties to it. Upon the dismissal of the claim, which was the effect of the erroneous judgment of the court, the claimants were entitled to a restoration of the property levied on, nor was there any authority in the sheriff to hold it. If the plaintiffs desired to prevent this result, they should have superseded the judgment by writ of error bond; not having done so, the reversal of the judgment by this court, cannot prejudice the sheriff, who had not the power to prevent the property from passing into the hands of the claimants, and who could have been compelled by an attachment to restore it. It is a rule of universal application, that rights acquired by third persons, under a judgment of a court having jurisdiction to render it, are not affected by a reversal of the judgment. [Boren v. McGee, 6 Porter, 432.] This rule applies with full force to the sheriff in such a case as this. He is not only a stranger to the judgment, but being an officer of the court, could have been compelled by an attachment to execute its mandate.

The reason assigned by the court, for not giving the sheriff' the benefit of the rule in this instance, is, that he did not show, except by his amended return, that the claim was regularly interposed. If the claim was not interposed until after the return day of the writ, or from any other cause was invalid, it should have been disregarded by the sheriff, and would be no protection to him. The interposition of a regular claim, was not, as it appears, shown by the return first made by the sheriff, but when the court permitted him to amend it, the amendment had relation to the time when the return should have been made ; the amendment being allowed to show the truth of the case. It is possible, the court in its judgment may have had reference to the fact, that the sheriff took an insufficient bond, from the claimant, but this did not invalidate his return, which, notwithstanding the insufficiency of the bond, was true in point of fact, that the execution had been stayed by the interposition of a claim to the property.

When an irregular, or insufficient bond is taken by the sheriff, the plaintiff may object to it, but the claim will not be dismissed for this cause, unless the claimant refuses to execute a sufficient bond. This is decisive to show, that if the claim is in other respects regular, the fact merely, that the bond is irregular, or insufficient, does not invalidate the claim. But the taking of an irregular, or insufficient bond by the sheriff, is an act of negligence, or breach of official duty, for which he is responsible to the plaintiff, if he sustains injury thereby, in an action on the case, or upon his official bond. Notwithstanding however such is the fact, the sheriff may defend himself under the judgment of the court, in delivering up the property according to its mandate. This results necessarily from the fact, that the claim suit was pending, and was decided in favor of the claimant. This judgment -is a full answer to this proceeding, under the statute for failing to make the money, when by due diligence it could have been made. The summary remedies given by our various statutes against sheriffs for neglects, or defaults, must be confined to the precise facts, which authorize the remedy attempted to be enforced. It is not sufficient that the mischief is the same. Thus, in the case of Garey v. McCown, 6 Ala. 370, it was held that such a motion as this could not be maintained against the sheriff, who had taken insufficient security upon a forthcoming bond, and was thereby prevented from making the money by the return term of the writ. So at the present term, in Hodges v. Laird, we held, that a motion would not lie against a sheriff, for a fine of five per cent, per month, for not paying over on demand the money which he had collected, unless he had in fact collected it under the execution ; and this notwithstanding he had promised the plaintiff to pay it, and had made a return which he was afterwards permitted to amend, from which it might have been inferred that he had made the money. All the decisions of this court, from its earliest organization, establish, that in proceedings under these statutes, for the enforcement of summary remedies against sheriffs, the plaintiff must bring himself within the letter, and surely there is a broad and plain distinction, as it respects the demerit of the sheriff, between his total neglect to make the money when it was in his power to do so, and his failure to do so, from a mistake or omission in taking a bond for trial of the right of property. These summary remedies are either penalties, or in the nature of penalties, recoverable in certain specific cases ; for all other defaults or omissions by the sheriff, redress must be sought by action on the sheriff’s official bond, or by an action on the case.

We have taken no notice of the fact, that the bond was taken by the successor in office of the plaintiff in error. Having begun to do execution on the writ in his hands, it was his duty, and not that of his successor, to complete it; as to this execution he still continued to be sheriff. The acts of his successor, being done by his direction, and for which he is responsible, must be considered as having been done as his bailiff, having been done on his behalf. The fact therefore, of his office becoming vacant, whilst the proceedings under the levy were in progress, may be laid entirely out of view, having no influence whatever upon the present question.

The remaining questions in the cause arise out of the deed of assignment, offered in evidence by the sheriff. This deed by which the defendant in execution conveyed all his property to two persons in trust for the payment of his creditors, was offered by the sheriff to prove property in a third person, which, when this cause was previously here, it was held the sheriff might do, notwithstanding he had made a levy, and subsequently in Mason v. Watts, 7 Ala. 703.

This deed is an ordinary assignment by the defendant in execution, conveying all his property to trustees for the payment of his creditors, giving a preference to certain classes, and exacting releases from others. It shows upon its face, that it was made in prospect of insolvency, and the proof establishes that fact beyond all doubt.

This is such a,conveyance of the property, as may be a justification to the sheriff in refusing to make a levy, or in restoring the property after a levy had been made. To be a justification for him, it must be a valid transfer of the property, and in justifying under it, he assumes the burden of proving that the deed is bona fide, and effectual in law for the purposes for which it was made.

It is now insisted that the assent of the preferred creditors was necessary to the validity of the deed, if they were placed in a worse condition by the assignment, than they would have been in if the deed had not been made, and to this effect the court charged the jury.

Though we yield our assent fully, to the force of the argument of the defendant’s counsel on this point, we are constrained to say, that it is not an open question in this State. From a very early period in our judicial history, such assignments as this, have been upheld, if valid, in other respects, from the presumed assent of the preferred creditors. This has been so long acquiesced in, has entered into so many kindred questions, and has become such a fundamental principle of our law, that it requires the action of the legislature to overturn it.

In Elmes v. Sutherland, 7 Ala. 266, and in several subsequent cases, this doctrine of the implied assent of creditors to a deed, making provision for the payment of their debts, is explained and limited, to those cases where there is a reasonable presumption of such assent; as where one insolvent, makes an assignment preferring certain creditors, and does not apply, where one not insolvent attempts to postpone the creditor in the collection of his debt. The doctrine here stated, of implied assent, is for the benefit of the creditor, which he may, if he thinks proper, decline to assert; but ■such refusal would not render the deed invalid as to other creditors, who did desire to claim a benefit under it. It would, if valid in other respects, be a security for them, subject to the rights of other creditors, notwithstanding the refusal of one or more of the preferred creditors, to avail themselves of it. In a word, the effect of a refusal by a preferred •creditor, to take under the deed,, would be the same as if he had been omitted out of it. If all should refuse, the deed would doubtless be wholly inoperative. It follows, that the court erred in deciding that the deed was fraudulent and void on this ground. It is however urged, that if the court erred in this particular, it worked no prejudice, because the deed is fraudulent on its face.

We are not prepared to say, that the deed is void in judgment of law, by an inspection of it, but the manner in which the trust was executed strongly indicates a fraudulent intent in making the deed. The facts disclosed upon the assignment itself, and by the proof, are, that J. M. Friou, a country merchant, being greatly embarrassed, with judgments about being obtained against him, executed the deed in question to S. Friou, his brother, a minor, and then a clerk in his store, and one Dawson, as trustees, by which he conveyed to them all his property, consisting of a stock of goods, debts due to him, a house and lot, and certain slaves j and gave them the most ample powers, authorizing them to sell the goods for cash, or on credit, as they thought proper, to collect the debts, &c. for the purposes of the trust. On the same day the deed was executed, the trustees executed to the grantor a power of attorney, by which they appointed him their agent, to sell the goods, collect the debts, compound with the debtors of the concern, &c. vesting in him the most am-pie powers.

If these deeds can be considered as one act, we should be strongly inclined to think, it would of itself be conclusive evidence of a fraudulent intent, as it would, in effect, be the same thing as if this power had been reserved in the deed itself. It is difficult to suppose, that the reservation of such a power over the conveyed property, could have been designed for any other than a fraudulent purpose; and it is manifest that its inevitable tendency would be, to render the provision in favor of creditors illusory. In the language of this court, in Ashurst v. Martin, 9 Porter, 576, such an arrangement would, so far as the debtor is concerned, deprive an assignment of all its terrors, and virtually give him the control of his property in defiance of his creditors.

The conduct of this agent of the trustees, was such as might have been expected. He remains in possession of the house and lot, and slaves, by a contract with the trustees. He controls the assigned effects, in the same manner as before the assignment. He receives the money arising from the sales of the goods, and payment of debts, directs which of the preferred creditors shall be paid, has possession of large sums of money, and is shown to have been profuse in his expenditure. The only change which appears to have been effected by the deed, is that the creditors are prevented from interfering with the property. It also appears, that Dawson, one of the trustees drew an order on the trust fund, for the payment of his individual debt, which the assignor agreed to pay out of the assigned effects, at an advance on the cash price. But a small portion of the debts secured by the deed are shown to have been paid, and to sum all up in a word, the grantor remained in possession of the assigned property, controlling and using it as his own until his death.

These facts clearly establish the want of good faith in this entire transaction, and show that the assignment was a device to defraud creditors, and through that medium to give the debtor the control and enjoyment of his property. But although these are the necessary inferences from the facts, the jury could alone draw them, as they alone could determine the existence of the facts.

For the error of the court, as shown in this opinion, the judgment must be reversed, and the cause remanded.