#### Schaub, Appellant, *v.*Welfare Finance Corp., Appellee.

(Decided December 4, 1939.)

*Mr. H. K. Forsyth,*for appellant.

*Mr. 8. J. Hetsler,*for appellee.

Geiger, J.

This ease is before us upon an appeal on questions of law from the judgment of the court below.

The petition recites, in part, that while plaintiff and her husband, Theodore J. Sehaub, were residing together in Sidney, Ohio, the defendant and Sehaub, entered into a conspiracy to defraud plaintiff of her property in the following manner: The defendant loaned to Sehaub, the husband, $200, taking a chattel *69mortgage as security therefor, which conveyed to the defendant household property located in the home of the parties, without the knowledge and consent of the plaintiff; that the loan would not have been granted to Theodore J. Schaub by the defendant without the chattel mortgage; that on the 5th of November 1937, plaintiff and her husband caused the property to be temporarily stored by a storage company where it remained until seized on execution; that en the 27th of August 1938, defendant recovered a judgment against Schaub on the cognovit note for the sum of $231.29; that defendant wrongfully and with intent to deprive plaintiff of her property and convert the same to its own use caused an execution to be issued directed to the sheriff, who under the direction and command of the defendant seized a large amount of personal property of which plaintiff was the sole owner; and that in pursuance of the execution and levy caused by the wrongful act of defendant the sheriff sold the property. Plaintiff says that by reason of the wrongful execution and sale, caused by the illegal acts of the defendant, her property has been converted to the defendant’s use to her damage in the sum of $1,500.

An amended answer was filed admitting certain allegations, among them the recovery of the judgment, the issue of the execution, the seizure by the sheriff “under the direction and order of the court” of the personal property of Theodore J. Schaub, and that the property was sold in accordance with an advertisement. Any ownership by the plaintiff is denied and the defendant denies any conspiracy or any conversion of the property by the defendant.

A trial was had before a jury and when the evidence of both plaintiff and defendant had been introduced, a motion was made by the defendant for a directed verdict on several different grounds, among them being that the plaintiff did not produce any evidence to prove a conspiracy or any evidence to prove any viola*70tion of the laws relative to the making of loans or any evidence to prove the defendant wrongfully deprived plaintiff of her property or any evidence to prove that the defendant directed or commanded the sheriff to seize and sell the property. Upon consideration of this motion the court granted the same, instructing a verdict on behalf of the defendant. A motion for new trial was made, overruled, notice of appeal given and the case lodged in this court.

The assignment of errors is to the effect that the court erred in instructing the jury to return a verdict in favor of defendant at the close of all the evidence; that the verdict is contrary to law; and for errors in the court’s refusal to submit the case to a jury, and for other errors.

On the trial of the case the evidence introduced by the plaintiff tended to show that on the 11th of October 1937, without the knowledge of the plaintiff, the defendant made a loan to her husband for the sum of $200; that the husband gave therefor a cognovit note and at the same time executed a chattel mortgage upon household property, which the plaintiff asserts was her property; that she never joined in the mortgage and never knew of its existence; that on the 5th of November 1937, her husband having lost his position, they gave up their house in Sidney and on that date put their furniture in storage; and that they thereafter separated, she going to Cleveland and he to Indiana. The goods were placed in storage in the name of the husband with her knowledge, she stating that she supposed it was proper because he was the head of the family. On November 4, 1937, before the storage was completed, he signed a bill of sale to his wife for all the furniture theretofore jointly owned by them, the same to be hers absolutely. Thereafter judgment was secured on the cognovit note by the defendant, and execution issued and the goods levied upon and sold *71for $436.05, which sum is in the hands of the sheriff, not having been distributed to the defendant.

No procedure was had by the defendant on the chattel mortgage, defendant admitting that it knew the ^ame was worthless because it was on household goods and not signed by the wife. We discover no evidence to support the allegation that there was a conspiracy between the defendant and Theodore J. Sehaub to defraud plaintiff of her property and there is no evidence to support the allegation that the loan would not have been granted had Sehaub not given the chattel mortgage.

The allegation that the sheriff acted “under the direction and command of the defendant” is inferentially supported by the testimony of the sheriff that he received the information as to the storage of the goods from Mr. Hetzler, the attorney for the defendant, the attorney directing him to levy the execution upon goods of Theodore J. Sehaub without giving any description of the particular goods to be seized except the general description “household goods,” and that the sheriff at the time he made the levy thought that he was levying on the goods of the husband.

Counsel for plaintiff stresses the provision of Section 8565-1, General Code, which provides in substance, that it shall be unlawful for either husband or wife to create any lien by chattel mortgage upon any personal household property owned by either or both, without the joint consent of both husband and wife and that no such mortgage shall be valid unless executed by both husband and wife.

If the matters before us involved any act of the defendant in an attempt to seize the goods by virtue of this mortgage or to foreclose it, the position of counsel would be correct. The statute definitely says that no such mortgage upon household property shall be valid unless executed by both husband and wife. However, no effort was made to foreclose the mortgage or to *72seize the property by virtue of auy of its provisions. The defendant followed the statutes as to judgment on the note, issuing of execution and levy and sale of the property. We are of the opinion that the giving of the ineffective chattel mortgage does not invalidate the transaction or deprive the defendant of its right to pursue the remedy provided by the statute for the collection of its judgment upon the promissory note. The plaintiff has secured no right by virtue of the fact that her husband signed a chattel mortgage. To the above extent the plaintiff has failed to prove her right to recover.

However, there is undisputed evidence that the property was hers and not that of her husband; that it was taken on an execution against her husband and all of it, except a few trinkets, sold for $436.05, whereas the judgment upon which execution was issued amounted only to $231.29. The sheriff has not been made a party defendant. The recovery is sought against the judgment creditor alone.

What'Would have been the sheriff’s liability had he been made a party? *State*v. *Jennings,*14 Ohio St., 73, holds in reference to a writ of replevin, which specifically describes the property, that it confers no authority on the officer to seize the property which is not actually or constructively in the possession of the party named in the process.

We see no difference so far , as this matter is concerned between a writ of replevin and a writ of execution.

In *Sparling*v. *Todd,*27 Ohio St., 521, it is stated by Judge Ashburn, on page 525, that it may happen at the sale that a part only of the property need be sold to satisfy the execution.

In 10 Ruling Case Law, 1394, Section 185, it is stated:

> “Plaintiffs in execution are liable as trespassers in many instances in which wrongful executions have been levied, particularly when the plaintiff directs the act *73which the officer performs. According to some authorities the plaintiff is not liable unless he authorized the officer’s acts, or unless he aided or abetted them. However, it has been held that execution creditors are liable for an illegal seizure, though they did not authorize the officer to seize the property in question. Where the wrongful execution was issued at the instance of the creditor’s attorney the creditor is liable # * #

See note to *Duperron*v. *Van Wickle,*4 Rob. (La.), 39, 39 Am. Dec., 509, 512; 91 A. L. R., 922, and cases cited.

*Hale*v. *Ames,*18 Ky. (2 Mon.), 143, 15 Am. Dec., 150, holds:

> “A plaintiff in execution procuring a levy to be made on a stranger’s goods is guilty of a conversion, whether he takes possession or not.”

We think we can safely conclude that if the sheriff seized and sold goods that did not belong to the judgment debtor, he was guilty of a trespass and is liable for conversion and that had he been joined in this action as a party defendant with the judgment creditor, both would have been liable for his wrongful act.

The question still remains as to whether the plaintiff in this case can pursue the judgment creditor without joining the sheriff. We see no reason why this cannot be done, nor do we feel that this action fails for the reason that no conspiracy was proved. No conspiracy was necessary to establish the plaintiff’s right. She was entitled, to recover because her goods were wrongfully seized and sold. The uncontradicted testimony shows that the plaintiff was wrongfully deprived of her property through an action begun by the defendant.

*Judgment reversed and cause remanded.*

Hornbeck, P. J., and Barnes, J., concur.