Boone Cnty. v. Lowry

• Decision Date: 31 January 1845
• Citation: 9 Mo. 24
• Court: Missouri Supreme Court
• Parties: BOONE COUNTY v. JAMES S. LOWRY.

9 Mo. 24

BOONE COUNTY

v.JAMES S. LOWRY.

Supreme Court of Missouri.

January Term, 1845.

ERROR TO BOONE CIRCUIT COURT.

TODD and GORDON, for Plaintiff. The plaintiff insists, to reverse the judgment: 1. That the officer is estopped by his return, and no evidence can be given by him to show property levied on by him as debtor's property belongs to a stranger. 5 Wend. R. 207; 2 J. J. Marshall, 26; 3 Marshall R. 412-393; 1 Litt. R. 17; 3 Litt. R. 41; 1 J. J. Marshall, 12; 6 Mass. R. 325; 15 Mass. R. 83; 9 Mass. R. 388; 3 Monroe R. 351; 2 Hen. and Munf. 105; 1 Litt. R. 16. 2 That the interest of a pawnee, pledgor, or one having the general property in goods, can be sold by execution. 2 B. Monroe's R. 41; 10 Wend. R. 318; 4 Wend. R. 292; 2 Bacon, 715.

KIRTLEY, for Defendant. 1. The defendant's counsel will insist that the evidence given on defendant's part, was competent and proper. It was competent and tended to show that the corn never was Burch's. It never had been in his possession. The purchase was conditional, and without and until the purchase-money was paid, his right to the corn or even the possession of it, did not vest. Burch, also, as we insist, had a clear right to pledge the boat, and put it into Pettus' possession, and beyond his own control to secure that payment. The constable could not rightfully divest Pettus of that possession, and certainly none to compel him to part with his own corn, upon other terms than those of his own making. It could not rightly be said the plaintiff was injured, in legal contemplation, because the constable had failed to sell Hunt's or Pettus' property, to pay Burch's debt. In other words it could be no legal injury to the plaintiff, that the constable did not continue a trespasser, because he began by being one, to the rights of strangers to the execution. Fuller v. Holden, 4 Mass. R. 498-502, decided by Chief-Justice Parsons, fully sustains this position. See also statute concerning Executions, Revision 1834, §§ 18 and 43. King v. Bailey, 8 Mo. R. 332. 2. Upon the basis of the foregoing proposition, the instructions given embrace the law of the case, and those asked by plaintiff's counsel were properly refused.

NAPTON, J.

This was a suit upon the official bond of Lowry, as constable of Missouri township in Boone county. Several breaches are assigned, and among others, that the defendant levied on certain property of the defendant, but failed and neglected to make sale of the property so taken, according to law. Upon the trial, the plaintiff proved a judgment against W. S. Burch and R. N. Todd, for debt, damages and costs, an execution issued thereon, and the following return: “Levied this execution on one boat and load of corn, supposed to be one hundred and thirty or forty barrels of corn, shown to me as the property of W. S. Burch, by R. L. Todd, the son of R. N. Todd, this 7th March, 1840, and on the 8th March, 1840, Stephen Pettus became the claimant of the corn and boat, and demanded a jury. I then summoned Stephen Pettus, Sandy Johnson, Thomas Jefferson and Isaac Bledsoe, jr., as a guard to guard said boat and corn, till I could get back with a jury, and when I got back to the place where I left the boat and corn, it was gone, and said guard was gone, this 9th March, 1840. Returned not satisfied. No other goods and chattels found whereon to levy in Missouri township. This 21st April, 1840.

J. S. LOWRY, C. M. T.”

The defendant then offered evidence to prove that the boat and corn did not belong to W. S. Burch, at the time of the levy. This evidence though objected to, was admitted by the court, and the court instructed the jury that if the property mentioned in the constable's return as levied on, was not, at the time of such levy, the property of Burth, they must find for the defendant. To this instruction as well as to the admission of the testimony on which it was based, exceptions were taken. The plaintiff submitted to a non-suit, and moved to set it aside, because the court had admitted illegal evidence and had given illegal instructions. The motion being overruled, the case is brought here by appeal.

The only question is, whether the evidence tending to show that the property levied on was not the property of the defendant in the execution, was admissible. It seems to be conceded as a general and well established rule of law, that the officer cannot contradict his returns. A special return of the facts will always protect the officer, if the facts so returned, show that he has discharged his duty. In the present case, the return is a special one, and must be taken to embrace a statement of all the facts upon which he relied for a justification of his official conduct. Is the fact, that the defendant was not the owner of the goods levie on, one of the facts detailed in the return, or can it be inferred from its language? In other words is it a return of nulla bona, or a special return of facts, which amount to a return of nulla bona? If so, the officer is clearly not liable. For if he levies on property which he afterwards discovers, either by the verdict of a jury or by any other sources of information, to be the property of a stranger, the law does not require him to-commit a trespass, or to commit a second trespass because he has ignorantly been guilty of the first.

The return of the constable is, that he levied on property shown to him as the property of the defendant; that the property was claimed by a stranger and that whilst engaged in summoning a jury to try the right of property, it was rescued from the possession of those to whom he had intrusted it.

Here is a return of a levy, and a levy upon property which appears amply sufficient to satisfy the judgment. This property was believed to be the property of the defendant and the only reason suggested by the return, for not selling in pursuance of the levy, is the...