Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-03-12
LEGAL.
Decisions % the supreme Court of
Tennessee, az Nashville, December
Term. 1867.

Tennessee, az Nashville. December
Term, 1867.
Reported for the Union and Dispatch. by ;. }.
Henderson. Attorney at Law.
The title Of personal property levied upon
passes 70 the officer" and while the property
4 ia cus0did iegis, no other officer has any
right 70 seize and remove the same. To make
legal levy on personal property, 1T IS neces,
sary that the officer should see the goods ana
Ia some manner assert his title by virtue OF his
execution. They must be subjected to his con
troll 50 as to touch OF remove them II ne
wishes"
An execution was issued by Magistrate
against McKain & Buyley, July 18th, 1860,
retuTnable the 18th day Of August; two
we're Issued on the 9th OF August, return
able on the 9Th Of September; five were
issued on the 10th day of August return
able on the 9th OF September, 1860; two
on tie 18th day Of August, returnable on
the 10th day Of September, 1860, and one
on the 18th of August, returnahe on the
18th day of September, 1860.
The three first purposed TO be levied on
the 10th Of August the FIVE succeeding
10 be levied on the 10th Of August 1860,
and the three others on the days Of their
issuance respectively.
These executions all came 10 the hands
Of three officers Of Montgomery county.
The defendants owned real estate, also
stock Of goods, consisting of furniture,
etc.
There was also in the hands Of the Sheriff
Of said county, executions issued from the
May term, 1860, of the Circuit Court, for
upwards of S14, 900 against the same de-
PENDANTS, and returnable 10 the September
term On Monday the 10th.
- q L. - 81
on all the real and personal property of
the defendants, and left the.personal prop
erty in the hands of the clerk in the store,
and the same remained in their hands un-
al the 9Th of September when the defend
ants conveyed ali their estate TO a trustee
to secure money borrowed TO pay the debts
held by the Sheriff, and other debts TO
about sac, 900. On the lth Of September
the officers holding the executions from
the Justices Court, went TO the house of
one Of the defendants and told him they
had levied upon the goods Of the store be-
fore the conveyance or trust was made, or
rather had both levied, after the Sheriff
and defendant in the execution sent for
Complainants, who were benefcisries I'M
der the conveyance in trust, and tue same
thing was repeated 10 them, and they pro- |
cured to 60 on a delivery bond.
They now file their bill and aliege that |
they we're deceived, and thought the levies !
had been made as represented, and that |
the whole transaction was a fraud, based |
upon falsehood; that no levies we're ever
made in fact; that the defendants in the |
execution had possession of the goods pur-
ported to be 80 levied upon all the time,
and by Themselves and clerks had been
selling the same
The proof is clear, that if these officers
had levied as their returns purport, no one
ever knew il, neither the defendants in the
execution nor their clerks, and on the day
9th Of September that they demanded
delivery bonds, il will be seen that one of the
executions been functds oficiO one month,
and seven had been finctus 0fciO three DAYS,
and the remaining three had few days to
run, and their action can only be charac-
terised a. indicating both great delay and
rspidity." These eleven executions are
for several thousand dollars, and all pur-
port 10 be levied within two or three days,
and no one can be called who knew or
heard Of the levies, until the time the
bonds were demanded.
All Of the personal property being under
the levy of the Sheriff, was ia citst0did iegis,
and no other officer had any right 10 seize
and remove the same. See Etheredge rs
Edwards, l Swan 426, 10 Peters 400, 8
Moss 27l, 9 Dana 37S, Bellor 24l. The
title Of personal property levied upon passes
20 the officer Brown IS. Allen, 8 Head
400.
Was the execution in the hands Of the |
constable ever in fact legally levied upon |
the personal property Of the defendants in |
the execution BY the English law, most |
clearly not. / Arch 1913, / Maule on Sc |
len III, 8 Taunt 1873 BY that law, the |
officer would enter the premises upon which |
the goods were, aud leave one of his assis- |
tants in possession of them, OF would cause |
an inventory 20 be taken and remove them |
Sevenne on Sherifis 2l0.
In the United States Il il necessary that |
the officer should see the goods, and in |
some manner assert his title by virtue of
his execution, BeckmAn as Lawsing, 3
Wend. 446. A proclamation ola levy upon
goods locked up, but not in sight, has been
held not 20 be a good levy HaFgerty rs.
Wilber, Is John, 2SS. They must be sub
jected 20 his control ~ as 20 touch or re- |
move them IL he wishes. Adam rs Colby |
N. II. Rep. &C, Is John, 2Ss
Ii is not sufficient for him 90 tell the de- !
iendant that he holds the execution, and
the goods are subject % his control if he |
does not take action. Westervelt as Pink |
ney, IA Wene. l24. Nor il he goes 10 the |
defendants house with the execution in his |
pocket and fails TO spprise the defendant |
that he has come 20 10 levy upon his goods. |
3 Wend. 446, 10 Wend. 497, % Ia. 492.
Making a note of the levy on the back |
Of the execution, with the property |
ia sight, in the presence Of the BE- |
PENDANT is sufficient 1 Swan 426 Moss a. |
Moore 3 Hill 276 . 3 Wend. 400.
The officer holding the execution should 1
assert a dominion over the property under
authority Of the execution, and so interfere
with the goods ~ that if he had no eKecu-
zion or other right, the act would amount
10 an actual or constructive trespass. 5
Cowen 326-7; I'd. 1855; 5 Wend. clio; 10 /
Id. $40; u Id. SO.
The alleged levies in this case. even ad-
hitting the property 10 be leviable, did not
amount to q legal levy in law those having
possession Of the goods did not know or
hear of il they asserted no dominion or
control the goods were sold from day to
day, openly and publicly, to customers
from the store, until conveyed in trust.
such being the COhcluon OF the property
at the time Of the execution Of the deliv-
ery bonds, and such the condition Of the
alleged levies we do not think these sure
ties were fairly dealt with in procuring
them to 60 upon the bonds.
There can be no doubt, we think, that
thew executed the bonds for the delivery
of the property with confident belief that
there had been a levy, previous 10 the con
veyanoe and superior TO it in point Of Law,
and advantage was taken Of this belief
and they induced to sign the bonds thereby.
This court decided in the case Of johnson
and Taylor as Ivy, MS, that The con-
tract for suretyship imports entire good
faith and confidence between the parties in
regard 10 the whole Transaction Anv CON