Wilson v. Powers ( 1875 )

Berry, J.

On November 30, 1872, the defendant, as a constable, received two justice’s executions against George Phillips, and on December 3, following, drove from Lake City to West Albany, where Phillips lived, — about two hours’ drive, — for the purpose of collecting the executions, which he took with him. He went to Phillips’ granary, opened the door, and seeing a quantity of wheat there, took some of it and put it in his pocket. There was no lock on the door, but he fastened it in the same way in which he found it fastened. He then drove to Phillips’ house, produced the executions, informing Phillips that he had them and that he had levied on the wheat. He then returned to Lake City, and endorsed his levy in due form on each execution, in the afternoon of the day when the same was made. It also appears from the defendant’s testimony that he ‘ ‘ wont right to work to rig up teams to get the wheat,” but could not get any till December 5. On that da3>- he took five teams, and brought the wheat levied on into Lake City, sold it, and applied the proceeds on the executions, paying the money realized to the justice by whom the executions were issued. The question presented for our consideration is whether the facts above stated establish a valid levy upon the wheat as against the plaintiff, to whom Phillips, after the alleged levy, executed a mortgage of the wheat, such mortgage being taken by the plaintiff in good faith and for value, and, so far as the bill of exception shows, without notice of the levy, and being duly filed.

Section 271, cli. 66, Gen. Stat., provides that “Personal property capable of manual delivery shall be levied upon by the officer taking it into his custody.” It is not enough to take merely ; he must take into his custody, that is to say, into his keeping; or in other words, he must keep, as well as take. In our opinion, this requires at least “ such a custody,” (in the language of Chief Justice Shaw in Hemmenway v. Wheeler, 14 Pick. 408,) “as to enable an officer to retain and assert his power and control over the property, and so that it cannot probably be withdrawn or taken by another, without his knowing it.” Drake on Attachment, § 256 ; Nichols v. Patten, 18 Me. 231, 238 ; Gower v. Stevens, 19 Me. 92; Bagley v. White, 4 Pick. 395 ; Sanderson v. Edwards, 16 Pick. 144; Shephard v. Butterfield, 4 Cush. 425 ; Bryant v. Osgood, 52 N. H. 182. That the “ custody” of the defendant in the case at bar was not sufficient, within this rule, is manifest without argument. It is, perhaps, hardly necessary to add that no question arises in this case as to what would be a valid levy, under the provisions of § § 272 and 273, cli. 66, Gen. Stat.

Order denying new trial reversed.