Stancill v. . Branch , 61 N.C. 306 ( 1867 )

The case has already been before this Court. See ante, p. 217. Upon coming before his Honor at the last term of the Superior Court, it appeared that previously to the levy (which was one of several amounting in all to some $1,500), the defendant had told the plaintiff that he had sold all his property to one Goodwyn; also, that in December, 1865, and again about 1 May, 1866, the defendant had made conveyances of all his property to Goodwyn, neither of which, from some formal defect, had been registered. That on 3 July, 1866, he made another such conveyance, which was registered. At the time of the levy the defendant had in his possession some $1,500 worth of personal property, consisting of horses, cattle, furniture, etc., which had been included in his conveyances, also a yoke of oxen, not so included. After hearing (307) this evidence the court allowed the officer to amend his return, which he did, in the following words: "In consequence of a conversation had with the plaintiff, in which he said there was doubt whether the personal property in the possession of the defendant was his, as he, the defendant, had told him, plaintiff, that he had sold it, and he, plaintiff, did not wish to have to give me a bond of indemnity; in which said conversation plaintiff directed me not to levy upon personal property, but upon the land, I have not gone to the defendant's house to look for goods and chattels upon which to levy, but have levied this execution upon the following lands (describing them), 9 June, 1866." Thereupon the court ordered a ven. ex. to issue to sell the lands levied on, and the defendant appealed. Constable must first levy on personal estate, and if he do not so levy, his return must show that it was for want of goods and chattels. Henshaw v.Branson, 3 Ire., 298; Jones v. Austin, 10 Ire., 20.

In Sloan v. Stanly, 11 Ire., 630, it appeared that the officer did not know that the defendant had goods. Here it was known to him. 1. The conduct of the defendant in regard to his property amounts to an estoppel in pais to assert, as against the plaintiff, that he had personal property that might be levied upon. See Bird v. Benton, 2 Dev., 179;Pickard v. Sears, 33 Com. Law, 115; Mason v. Williams,8 Jon., 478; Hearnev. Rogers, 13 Com. Law, 449; Graves v. Key, 23 Com. Law, 79, 4 Kent, p. 268n.(c), 7th ed. Phil. Amos Ev., 378.

2. At least it is a waiver of his privilege to have his personal (308) estate taken first. Sloan v. Stanly, 11 Ire., 627; Tyser v. Short, 5 Jon., 279. See, also, Jones v. Austin, 10 Ire., 20, as to presumptions in favor of the order below.

3. The usual words "For want of goods and chattels," do not constitute alegal formula, but may be supplied by expressions equivalent, or by any that satisfy the requirements of the law in regard to levies upon realty and personalty. Compare Henshaw v. Branson, 3 Ire., 298, with Tyser v.Short, Sloan v. Stanly, and Jones v. Austin; also see Rev. Code, ch. 62, sec. 16; Smith v. Law, 2 Ire., 457; Blanchard v. Blanchard, 3 Ire., 105. In the case of Sloan v. Stanly, 11 Ire., 627, it was decided that where an execution is about to be levied by a constable, the debtor, if he has personal property, must show it, and, if he do not, the officer commits no wrong by levying on the land in the first instance. So, if it do not appear that the officer knew of the existence of the personal property, he is justifiable in levying on the real estate. The present case. differs from the one referred to in the fact that the officer knew that the debtor was in the possession of goods and chattels, as well as of lands; but he was informed, and had good reason to believe that the debtor had conveyed, or was endeavoring to convey all his property, both real and personal, to a third person. The plaintiff in the execution had the right to test the validity of that conveyance; and we think he had the option to select which kind of property should be levied on, for the purpose of trying the title. It is manifest that less difficulty would be encountered by a levy upon the land than upon the personal property of the debtor; and, according to the facts stated in the constable's return, the court was authorized to grant the order for a venditioni exponas.

It is very certain, we think, that a debtor may, if he prefer to keep his personal property, request the officer to levy upon his land, and the officer will be justified in so doing, and stating the request in his return. So, in our opinion, an attempted fraudulent conveyance (309) of all his property by a debtor will amount to a waiver of his right to have his personal property taken in preference to his land, and the officer may levy, in the first instance, upon the land and make his reason known in his return. The right to have his personal property taken and sold before his realty is intended as a benefit to the debtor, and there is no reason why he may not waive, or forfeit it. In either case where the facts are made known to the court, in the return of the officer, the court may proceed to act upon it, and order the sale of the land for the satisfaction of the debt.

PER CURIAM. Judgment affirmed.