Bradley v. Kesee
| Decision Date | 31 December 1867 |
| Citation | 45 Tenn. 223 |
| Parties | Bradley & Dortch v. Kesee, Cain et als. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM MONTGOMERY.
At the October Term, 1866, there was a decree in favor of the respondents; from which complainants appealed to this Court. Chancellor THOMAS BARRY, presiding.
HORNBURGER & HOUSE, for Complainants.
JAMES E. BAILEY and ROBT. W. HUMPHRIES, for Respondents.
One execution was issued by a Magistrate against McKoin & Bayley, July 13, 1860, returnable the 12th day of August; two were issued on the 9th of August, returnable on the 8th of September; five were issued on the 10th day of August, returnable on the 9th of September, 1860; two on the 17th day of August, returnable on the 16th day of September, 1860; and one on the 19th of August, returnable on the 18th day of September, 1860.
The three first, purport to be levied on the 9th of August; the five succeeding, to be levied on the 10th of August, 1860; and three others, on the days of their issuance, respectively.
These executions all came to the hands of three officers of Montgomery County.
The defendants owned real estate--also, a 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 $14,000, against the same defendants, and returnable to the September Term, on Monday, the 10th.
The Sheriff levied the court executions on all the real and personal property of the defendants, and left the personal property in the hands of the clerks in the store; and the same remained in their hands until the 8th day of September, when the defendants conveyed all their estate to a trustee, to secure money borrowed to pay the debts held by the Sheriff, and other debts, to above $40,000. On the 11th of September, the officers holding the executions from the Justice's court, went to the house of one of the defendants and told him they had levied upon the goods in the store before the conveyance in trust, was made, or rather had backlevied after the Sheriff; and the defendants in the execution sent for complainants, who were beneficiaries under the conveyance in trust, and the same thing was repeated to them, and they procured to go on a delivery bond. They now file their bill, and allege that they were deceived, and thought the levies had been made as represented; and that the whole transaction was a fraud based upon falsehood; that no levies were ever made in fact; that the defendants in the execution had possession of the goods purported to be 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 it--neither the defendants in the executions or the clerks. And on the day (11th of September) that they demanded delivery bonds, it will be seen that one of the executions had been functus officio one month; seven had been functus officio three days; and the remaining three had a few days to run; and their action can be characterized only as indicating both great “delay and rapidity.” These eleven executions are for several thousand dollars and all purport to 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 are demanded.
All of the personal property being under the levy of the Sheriff, was in custodia legis, and no other officer had any right to seize and receive the same. See Ethridge vs. Edwards, 1 Swan, 426;10 Peters, 400;5 Mass., 271; 9 Dance, 378; 4 B. Mon., 241. The title of personal property levied upon, passes to the officer: Brown vs. Allen, 3 Head, 429.
Was the execution in the hands of the constable, ever, in fact legally levied upon the personal property of the defendant in the execution?
By the English law, most clearly not: 1 Arch. Pr., 293; 1 Maule & Selw., 711; 5 Taunt., 198. By that law the officer would enter the premises upon which the goods were, and leave one of his assistants...
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