18 N.Y. 496, Andrews v. Durant

Citation:18 N.Y. 496
Party Name:ANDREWS et al. v. DURANT et al.
Case Date:March 01, 1859
Court:New York Court of Appeals

Page 496

18 N.Y. 496

ANDREWS et al.


DURANT et al.

New York Court of Appeal

March 1, 1859

Page 497

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Page 498

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Page 499


John H. Reynolds, for the appellants.

Amasa J. Parker, for the respondents.


The levy of the sheriff of Ulster on the barge in question, by virtue of executions against Bridger & Bishop, while it transferred the possession of the barge and vested a special property in the sheriff, did not diminish or at all affect the right of Bridger & Bishop, the general owners, to sell and dispose of it, subject to the rights acquired by and incident to the levy. Their assignment, therefore, to the plaintiffs, although it may have been fraudulent as to creditors, and although it was subsequent, in point of time, to the levy, was valid and effectual between the parties to the instrument, and as to all other persons not coming within the protection of the statutes for the prevention of frauds. As between the plaintiffs and the sheriff, the plaintiffs had the position of their assignors and were entitled to extinguish the sheriff's rights by the payment of the executions in his hands. Under these circumstances the replevin, brought by the defendants against the deputy-sheriff, did not constitute them successors to the sheriff's possession in any other sense than that they, in fact, took from the sheriff, by the writ, the possession of the property.

Page 500

The taking was under a claim of right hostile to that which the sheriff was asserting. They claimed to be themselves the owners of the property under the contract for the building of the barge by Bridger & Bishop. To the replevin suit the plaintiffs were strangers; they would not be affected by its final determination. No decision in it could have altered their rights. The title which the sheriff had acquired by the levy was, while it lasted, an obstacle in the way of their assertion of right, because it was both prior and superior to their title. But when they paid the judgments which were the foundations of the levy, they did not acquire the sheriff's position nor his title; they simply put an end to it, by the extinguishment of the claim by virtue of which it had its origin.

The plaintiffs being, as we have seen, strangers to the replevin suit, and having extinguished the rights of the sheriff, demanded the...

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