Barry v. M'Grade

• Decision Date: 01 January 1869
• Citation: 14 Minn. 126
• Parties: HORACE W. BARRY v. FRANK McGRADE and others.
• Court: Minnesota Supreme Court

Page 126

14 Minn. 126

HORACE W. BARRYv.

FRANK McGRADE and others.

Supreme Court of Minnesota.

Appeal by defendants Cressey and Brown from a judgment of the district court, Carver county.

The action was for the conversion of certain sheep and lambs levied upon by Cressey, the deputy of McGrade, sheriff of Scott county, under the advice and direction of defendant Brown, attorney for plaintiff in the process, upon an execution against one Williams, who was then in possession of the property.

Brown & Peck, for appellants.

W. P. Warner, for respondent.

McMILLAN, J.

It is found by the court that the defendant Cressey, as deputy sheriff, by virtue of a certain execution levied upon and took into his possession, and from the possession of Henry H. Williams, the defendant in the execution, as his property, certain sheep and lambs; that the same were levied upon and taken in connection with a large flock of sheep and lambs, all in said Williams' possession. The court also finds that in September, 1862, the plaintiff, Barry, was the owner of certain sheep and lambs, and at that time let the same to Williams, in whose actual possession the sheep then were, under a written agreement, by the terms of which Williams was to have half the wool, and half the increase of the flock, in consideration that he should properly care for and feed the same, and return to the plaintiff the whole of the sheep and one-half the lambs at the end of the year; that the contract was renewed from year to year till the fall of 1864, when it was agreed that plaintiff should have for his share the entire increase, and Williams the entire crop of wool for the next year.

Under this state of facts can the plaintiff recover, as against the defendant Cressey, in the absence of the affidavit required by section 1, c. 24, Laws 1865, p. 63?

A provision substantially similar, except that it is limited in its application to actions for the claim and delivery of personal property, exists in the Code of New York. Voorh. Code, (8th Ed.) p. 396, § 216. It has been held in that state that the section is only applicable where the property was taken by the sheriff in the proper discharge of his duty; that is, from the possession of the defendant, or his agent, in accordance with statutory provision. Section 209. But, when the sheriff is thus acting in the discharge of his duty, the doctrine that the person claiming the property is limited to the mode prescribed by the statute as against the sheriff, is recognized and announced. King v. Orser, 4 Duer, 431.

A precisely similar section existed in our statute up to the time of the revision of 1866. Comp. St. p. 550, § 140.

The statute relied on in this case is expressly applicable to cases where property is levied upon or taken by a sheriff by virtue of a writ of execution, warrant of attachment, or other process, and provides that no claim to such property by any other person than the defendant or his agent shall be valid against the sheriff, unless made in the manner specified in the act. At the time of the passage of this act it had been decided by the supreme court of this state that where personal property was found in the possession of the judgment debtor, who was exercising acts of ownership over it with the consent of the owner, and the property was seized by the sheriff upon execution, persons claiming the same could not maintain an action against the sheriff, unless they notified him of their claims, or showed that he had such notice before the seizure. Vose v. Stickney, 8 Minn. 75, (Gil. 51.) And in construing chapter 41 of the Laws of 1862, p. 98, the court held, in effect, that the act was merely declaratory of the common law, except that the notice, when required, must be in writing, but that the statute had no reference to any case except where the property is in possession of the defendant at the time of the seizure, sufficiently to create a presumption of ownership in him; and that it was incumbent on the plaintiff to show the notice, when it was given, or the knowledge in the officer of the plaintiff's claim, when he relies upon that. Dodge v. Chandler, 9 Minn. 97, (Gil. 87.)

The...