1 N.Y. 20, Stief v. Hart

Citation:1 N.Y. 20
Party Name:STIEF v. HART
Case Date:September 01, 1847
Court:New York Court of Appeals

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1 N.Y. 20




New York Court of Appeal

September 1, 1847


A. Taber, for Plaintiff in error.

S. Stevens, for Defendant in error.

Points for Plaintiff in error.

I. STIEF had such a property in the goods, that he could have maintained trespass against the general owner, had he

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removed them without Stief's consent, and before the lien was discharged. (10 Wend. 318.)

II. If trespass would lie against the general owner for interference with Stief's possessory title, it will lie against the Sheriff for the same cause, unless the Sheriff, by virtue of an execution, can acquire a greater right of control over, and a greater interest in, the property of the execution defendant than the latter himself has.

III. The 2d Revised Statutes, page 366, sec. 20, authorizes the "right and interest" of a pledgor to be sold on execution, but does not interfere with the rights of a pledgee.

In this property, the right to the possession was in Stief, and of course the possessory title of the general owner had been divested, and could not be sold; yet the Sheriff took the property from the possession of Stief, an act which the general owner himself could not do.

IV. The greater power includes the less; and if sections 20 and 23, as declared by the Supreme Court in 6th Hill, 484, give the Sheriff the power to have the property in view when sold, that power may, and therefore ought to be exercised without removing the property from the possession of the pledgee. If the Sheriff can remove, he can also enter upon the pledgee's premises to sell, and may advertise it to be sold without removal, and thus leave the rights of the pledgee undisturbed.

V. The statute does not confer upon the Sheriff power to remove the property, because,

1.At common law, the Sheriff could not remove pledged property without paying the lien; (Story on Bailment, 238, sec. 353; ) though the "right and interest" of the pledgor could be sold on execution. (4 Wend. 292.)

2. The statute, secs. 20 and 23, 2 R. S. 367, does not alter, but is merely declaratory of the common law. (Revisor's Notes, part 3d, chap. 6, title 5, secs. 17 and 20; 17 J. R. 116; 14 do. 222.) Except that as to the power of a Sheriff to sell assigned or bailed goods, the

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decisions were conflicting. (5 J. R. 345; 4 Cowen, 469.)

3. If "personal property" in the 23d sec. includes the "right and interest" of a pledgor in the 20th sec., then the last clause of the 23d sec. must also apply to pledged property, and the Sheriff who takes it must offer it for sale in such "lots and parcels as will bring the highest price; " whereas pledged property must be sold in one parcel, and cannot be divided.

Points for Defendant in error.

I. The statute confers the right of levy upon goods pledged. (2 R. S. 290, sec. 20, 2d ed.)

II. Personal property cannot be sold unless the same be present, and within the view of those attending the sale. (2 R. S. 291, sec. 23, 2d ed.)

III. The Sheriff having the right to levy, has the right to do all that the law requires to enable him to sell. ( Burrall vs. Acker, 23 Wend. 610; 14J. R. 352; 15 J. R. 179.)

IV. He had the right therefore to remove the property to a place of safe deposit, and he is not a trespasser for so doing. ( Scrugham vs. Carter, 12Wend. 134; Randall vs. Cook, 17 Wend. 58; Phillips vs. Cook, 24 Wend. 395; Waddell vs. Cook, 2 Hill, 47, note.)


The decision of the question presented by the exception in this case, depends upon the construction of the 20th section o F.2d Revised Statutes, page 366, taken in connexion with sections 18, 19, 21 and 23.

"SEC. 18.Upon executions against the property of a defendant, the officer shall levy upon any current gold or silver coin belonging to the defendant, and shall pay and return the same as so much money collected without exposing the same for sale at auction.

SEC. 19.Upon executions the officer may levy upon and sell any bills or other evidences of debt issued by any monied corporation, or by the Government of the United States, and

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circulated as money, which shall belong to the defendant in such execution.

SEC. 20. When goods or chattels shall be pledged for the payment of money or the performance of any contract or agreement, the right and interest in such goods, of the person making such pledge, may be sold on execution against him, and the purchaser shall acquire all the right and interest of the defendant, and shall be entitled to the possession of such goods and chattels, on complying with the terms and conditions of the pledge.

SEC. 21. No sale of any goods and chattels shall be made by virtue of any execution unless previous notice of such sale shall have been given, six days successively, by fastening up written or printed notices thereof, in three public places of the town where such sale is to be had, specifying the time and place where the same is intended to be had.

SEC. 23. No personal property shall be exposed for sale unless the same be present and within the view of those attending such sale: it shall be offered for sale in such lots and parcels as shall be calculated to bring the highest price. "

It will be observed, on reference to the statute, that the 18th and 19th sections speak of a levy, and the 20th does not; and from this difference in language it was inferred on the argument that the officer might sell under the 20th section without making a previous levy. But it will be seen that the mode of sale is so regulated by the statute as to require the officer to have the custody and control of the property sold; and the officer is therefore justified in making a levy, because a levy is necessary to a sale in the manner directed. Whenever the law requires an act to be done, it authorizes the agent to do what is necessary to accomplish it in the mode pointed out for its performance.

The 23d section declares "that no personal property shall be exposed for sale by the Sheriff unless the same be present and within the view of those attending the sale. " If this provision is applicable to cases arising under the 20th section, the Sheriff must have the power to take the goods into his

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custody; because without it, he cannot produce the goods at the sale.

It cannot be seriously urged that the officer may discharge his duty without a levy, by advertising the goods to be sold on the premises of the pledgee for the purpose of having them within view of the bidders there, while the goods may be removed at the pleasure of the pledgee, beyond the reach of the Sheriff or purchaser; and moreover, if the statute gives the Sheriff no authority to take the goods for the purpose of a sale, it gives him none to enter on the pledgee's premises for that purpose; for the sale may as well be any where else as there unless it be in connection with the power to exhibit the goods to the persons attending the sale.

In Bakewell vs. Cook, 6 Hill 484, the Supreme Court decided this question, holding that the 23d section applied to and regulated sales authorized by the 20th section, as well as other sales of personal property. Indeed it is impossible to give to the 23d section any other construction, unless it can be shewn that the right and interest of a pledgor in goods pledged is not "personal property. " These words are used in the 23d section, and have a well settled meaning. They embrace not only goods, chattels, coin, bills and evidences of debt, but in their strict and more appropriate legal definition signify the right and interest of the owner or owners in these articles. "Property" is defined by Jacob, in his Law Dictionary, to be "the highest right a man can have to any thing; being used for that right which one hath in lands or tenements, goods or chattels, which no way depends on another man's courtesy. " In Morrison vs. Semple, 6 Bin. 94, Chief Justice Tilghman said, "that property signified the right or interest which one has in lands or chattels, and that it was used in that sense by the learned and unlearned, by men of all ranks and conditions; " and in Jackson vs. Housel, 17 Johns. Rep. 283, Chief Justice Tilghman's definition is cited and approved by the late Chief Justice Spencer. In that case and in the case of Wall vs. Langlands, 14East 370, it was held that a devise by a testator of all his "property"

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passed his whole real and personal estate, and comprehended all he was worth. The words "general property, " and "special property" are constantly used in the books to denote, not the chattel itself, but the different interests which several persons may have in it. Indeed the revisers could not have selected, and the language does not afford words better adapted to apply to and embrace every thing mentioned in the 19th and 20th sections of the statute as the subjects of sale than the words "personal property" used in the 23d section. If the words goods and chattels had been used in the 23d section, they would have afforded far more ground for doubt, because they are less comprehensive in their meaning. But even then a liberal construction would make them applicable to the sales mentioned in the 19th and 20th sections, because the things pledged are in fact sold subject to the redemption of the pledge. They are used in the 21st section, which directs a six day notice of sale; and if the plaintiff in error can be supposed to have shewn that the officer may sell the defendant's interest in goods pledged without producing the goods at the sale, he has shewn by stronger reason that the sale may be made without notice; because if the words "personal property" do not include the...

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