Penland v. . Leatherwood

The first exception is without force. It was neither necessary nor proper to mention or to make any allegation in the complaint in respect to the warrant of attachment mentioned. They were produced on the trial as evidence explanatory how the plaintiff came to have possession at first of the property in controversy. It may be that they were unnecessary for that purpose, but no objection was made on that ground. It is not proper, ordinarily, to allege in the pleadings merely evidential facts, whether documentary or otherwise, or the evidence of the plaintiff's cause of action alleged, or of the defense relied upon in the action. The pleadings should state in an orderly way only the facts which constitute the cause of action and the defense.

If the evidence of the plaintiff himself, received on the trial without objection, be accepted as true, then unquestionably he was entitled to recover in this action. He testified that on 11 December, 1885, he had possession and control of the goods in question, and levied an (513) execution — it must be taken to have been in all respects a valid and proper one — on the same; that in the course of the same day other like executions came into his hands which he had not levied on the goods at the time the defendant came upon him, as sheriff, seized the property and forcibly deprived him of the possession thereof.

As the plaintiff so levied upon and had possession of the goods, he had a special property therein for the purpose of selling the same and applying the proceeds of the sale to the payment of the judgment specified in the execution levied and to the satisfaction of any other executions properly in his hands, though they were not actually levied. The property, by virtue of the levy and seizure thereof, was in custodia legis, and might, indeed ought, properly to have been applied to the execution then in the hands of the plaintiff as constable, although, except as to the first one mentioned, they had not been actually, but only constructively, levied. As the property levied upon was, or the proceeds of the sale thereof under the levy were, in the custody of the law, the officer was required to apply the same properly to the satisfaction of other executions in their order then current and requiring by the exigency of the same such application. The law is true to its purposes, and will not allow its final process, going against the property of individuals, to be disappointed or defeated while it has in its custody and control property or money of the persons against whose property such process goes that ought to serve its purpose.

There can be but one actual levy of one or more executions upon personal property at one and the same time, because the officer in making the same seizes or gets possession and control of it and has a special property therein and ownership thereof that excludes and prevents other like levies, which levy, however, as we have already seen, places the property in custodia legis, to be applied in proper cases if need be to other executions. Other officers having like (514) executions may make other levies upon the same property, but these will be constructive in their nature and entitle the officers making them, in their order, to have the property or the proceeds of the sale thereof after the executions under and in pursuance of which the first actual levy proper was made shall be satisfied. It is the duty of the officer making the first levy, and having notice of the second and other constructive levies, to so apply the property and the proceeds of the sale thereof, and the courts will, if need be, compel him to do so. The late Chief JusticePearson meant no more than this when he said, in Bland v. Whitfield, 1 Jones, 125, that "when an officer has already levied and taken the property into possession a second officer may make a second levy by going where the property is and making the endorsement on his execution. In this case he has no right to touch the property, and the levy gives him the right to it after the first execution is satisfied." Such a levy is necessarily only constructive. The officer making it cannot get possession of the property until the first levy shall be over. It is the levy of the execution on personal property that creates the lien on the same in favor of the judgment creditor, and hence the proceeds of the sale of the property must be applied to the satisfaction of each execution in the order as to time of the levy of the same. It is difficult to see how otherwise numerous judgment creditors of their common judgment debtors could have just benefit of executions issued upon their respective judgments going against the debtor's personal property. It is otherwise as to the debtor's real property; as to it, the docketed judgment creates a lien thereon in favor of the creditor, and a levy serves no other purpose than to designate the particular property sold or to be sold.S. v. Poor, 4 D. B., 384; Jones v. Judkins, id., 454; Alexander v. Springs, 5 Ired., 475; Barham v. Massey, id., 192; Rives v.(515) Porter, 7 Ired., 74; Freeman on Executions, secs. 135, 262, 268; Hermon on Executions, secs. 172, 174.

If, therefore, the plaintiff testified truly on the trial, he had such special property in and ownership of the goods in dispute as entitled him to recover in this action, his measure of damage being the whole sum of money due upon the execution actually levied upon the goods, as well as that due upon the executions in his hands not actually levied, including costs, at the time the defendant seized the goods and took the same from him.

If, however, the defendant, as his testimony tended to prove, levied executions in his hands while the warrants of attachment were in the hands of the plaintiff and levied by him, and before the latter received the executions that first came into his hands, then the property should have been devoted to the executions in the hands of the defendant at that time, and constructively levied, subject to the levy of the warrants of attachment. Or, if the defendant levied constructively the executions in his hands after the plaintiff levied the execution first in his hands, actually or constructively, and before the plaintiff received the executions which he said he did not levy, then the property should have been first devoted to the first execution so levied by the plaintiff; secondly, to the execution first so levied by the defendant; thirdly, to the execution that came into the hands of the plaintiff next after the levy so made by the defendant; and fourthly, to the executions that came last into the hands of the defendant, if he made a proper constructive levy of the same.

There was some evidence tending to show such order of levies, made constructively and successively, after the first actual levy made by the plaintiff.

But the court instructed the jury that the defendant, as sheriff, could not make such constructive levy of executions in his hands; and, in effect, further, that the plaintiff had the right to devote the property levied upon by him to the satisfaction of the execution (516) that first came into his hands and was levied; and also, secondly, to the execution that subsequently came into his hands, although in the meantime the defendant, as sheriff, may have made a constructive levy of executions in his hands upon the same property. Such instruction was erroneous.

For reasons already stated, the court should have instructed the jury, in applying the law, substantially as it is above stated. The appellant is entitled to a new trial, and we so adjudge.

Error.

Cited: Harper v. Rivenbark, 165 N.C. 182.