Bullitt's Ex'rs v. Winstons

• Decision Date: 16 May 1810
• Citation: 15 Va. 269
• Parties: Bullitt's Executors v. Winstons
• Court: Virginia Supreme Court

15 Va. 269

Bullitt's Executors v. Winstons

Supreme Court of Virginia

May 16, 1810

Argued March 22, 1810 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

The principal questions involved in this case were, first, what acts amount to a legal levying of a writ of fieri facias; and, secondly, what is the effect of the plaintiff's directing the Sheriff to postpone the sale of property taken in execution, and suffer it to remain in possession of the defendants, until a day subsequent to the return day; as against securities; such arrangement having taken place by an agreement between the principal debtor and the plaintiff, without their concurrence?

A motion was made, to the District Court of common law, holden at Richmond, on behalf of Samuel Jordan Winston and Edward Winston, to quash a writ of fieri facias issued the 21st of February, 1804, in favour of Thomas Harrison, and Thomas James Bullitt, executors of Cuthbert Bullitt, against John Carter Littlepage, and the said Winstons; on the ground, (set forth in the notice,) " that a former writ of fieri facias for the same debt, had been regularly issued and levied on the goods and chattels of the subscribers, who were only securities for the said debt, and the said property, then taken, released and discharged by the aforesaid Thomas Harrison, under a compromise with the said John Carter Littlepage; to which compromise they were not parties, or in any manner consulted with respect to the same."

The evidence introduced on the hearing of this motion, and spread upon the record by a bill of exceptions, consisted of two writs of fieri facias on behalf of the said executors; one of which was against John C. Littlepage, Thomas Starke and the said Winston; and the other against the same persons, except Thomas Starke; both bearing date the 21st of January, 1800, and returnable the 1st of April following, but with no returns endorsed; also a letter from the said Thomas Harrison to the Sheriff of Hanover, dated March 12th, 1800, in which he directed him " to put off the sale of the property, taken by the said executions, until the first day of August, holding the property subject to the said executions, and to suffer it to remain in the possession of Mr. Littlepage, or his securities; " and other testimony proving that William Clarke was the deputy of Thomas Tinsley, Sheriff of Hanover County; that the said writs came to his hands as deputy aforesaid, at the time endorsed thereon; that, prior to the 12th day of March, 1800, he went to the house of Edward Winston for the purpose of levying the same on his property; that he then and there saw certain slaves belonging to the said Edward Winston, and declared that he " should levy" the said writs on them; that " no opposition was made" to the levying the said executions; that thereupon Peter Crutchfield, and the said Edward Winston, orally undertook to the said Clarke, to see that the said slaves should be forthcoming at the day of sale, and the said Clarke did not remove them, nor touch them, but assented to their remaining in the possession of Edward Winston, having taken a list of their names; that he next proceeded to the house of David Timberlake, who was in possession of a slave belonging to the said S. Jordan Winston, under hire until the end of the year 1800, and informed the said Timberlake that it was his purpose to levy the said writs upon the said slave, but did not remove him, nor touch him, (the said Timberlake having promised that he should be forthcoming at the day of sale,) but consented that he should remain in the said Timberlake's hands till then; that the said Clarke appointed the 20th day of March, 1800, for the sale of the said slaves, and advertised them (without naming them) as having been seized by virtue of the said executions; that, on the said 20th day of March, Timberlake brought the slave in his possession to the place of sale; but Clarke (having received the aforesaid letter from Thomas Harrison) informed him he might carry the slave back; which he accordingly did; that, at the time of these transactions, S. Jordan Winston was absent from the County, and knew nothing of what had passed, until after his return. The said Clarke deposed " that he did believe, and yet believes, that the said letter was delivered to him by a certain T. Starke, but had been told by Edward Winston that it was delivered by himself; that he gave notice, on the said day, to Timberlake and Edward Winston, that he should attend at the same place on the first day of August, 1800, in order to sell the slaves according to the terms of the said letter; and did attend accordingly, but the slaves were not produced; that the execution, for the purpose of quashing which this motion was made, was levied upon the slaves aforesaid of Edward Winston only; that no property of Littlepage was seized under the former executions, and it was generally understood and believed that all his personal estate was so encumbered and covered by deed that those executions could not be levied with safety upon any part thereof; that Harrison's letter was obtained at the instance of Littlepage, on condition, that he would pay to the said Harrison the sum of 4001. which was done, and was sufficient to discharge the aforesaid execution against Littlepage, Starke, & c.; (which, according to the endorsement upon it, had first come to the Sheriff's hands; ) that S. Jordan Winston did not make to the said Clarke any objection to the said letter, while the said executions were in his hands; but it was not proved that he assented to the terms thereof, or that he ever was acquainted with the indulgence granted thereby, until after the execution now in question was issued; that the said Clarke, as Deputy Sheriff, received his full commissions, on the said executions issued in the year 1800, from John C. Littlepage and the said Starke; that the execution which issued the 21st of January, 1800, (on the same judgment on which the present execution is founded,) had an erasure on the back thereof; " and the said Clarke further deposed " that he believed that the names of the slaves were put on the back of the execution, but that the writing is now erased, except the word " Peggy" which he believed was the name of one of the slaves advertised by him, and which word is in his hand-writing." He also deposed that he did not know who made the said erasure.

Upon this evidence, the Court rendered judgment, that the said execution be quashed; " it appearing to the Court that the former execution had been levied on property which had been released by consent of the plaintiff, although the said execution was returned without any return endorsed thereon." And it was further ordered, " that William Clarke be permitted to make a return upon the execution levied as aforesaid, according to the truth of the case; to which judgment Bullitt's executors excepted; and afterwards obtained a writ of supersedeas, which abated, as to Edward Winston, by his death. ^[*]

The judgment was therefore unanimously affirmed.

Botts, for the plaintiffs in error. The first executions were not levied. I admit that seizing a part, in the name of the whole, is sufficient: ^[a] but then there must be a seizure. ^[b] Where a Sheriff seizes property not subject to the execution, as where he seizes the property of B. upon an execution against A. he is a trespasser. But, in this case, he could not have been charged as seizing vi et armis. In point of fact there was no seizure. Mere words could not make it. The bargain that the slaves should be considered as taken (when they were not) could not make it an actual seizure; neither could the plaintiffs (who were not parties to this bargain) be bound by it.

Indeed, the bargain was illegal; for the Sheriff was not authorized to leave the property in the defendants' possession without taking a forthcoming bond. ^[c]

The letter from Harrison fitted a case which did not exist; appearing to have been written under a mistaken impression that the fi. fa. had been levied. No precedent shews that a mere postponement by the plaintiff of a sale under execution will discharge the execution. The Sheriff may obtain authority from the Court to postpone his return, and, after the return day, may sell. Withdrawing an execution from the hands of the Sheriff, before it is levied, does not discharge it.

The Sheriff's receiving commissions was only prima facie evidence that the execution was levied; which evidence was rebutted by positive proof that it was not.

The plaintiff's letter did not authorize the Sheriff's discharging negroes which were not in his custody. In fact, he could not discharge them; for they were not produced. ^[d]

Nicholas, (Attorney-General,) contra. As to the first point; the negroes are proved to have been in the sight of the Sheriff: no opposition was made to his levying; and their names were set down on the back of the fi. fa. All the law can require is to get legal possession of the property; which he obtained in this case. Is there any book which says the Sheriff must lay hands on the property? If it was the intention of the parties that he should be considered in possession, and the property was left with the defendant only for his accommodation, the Court ought to hold the execution levied. The plaintiff's letter too shews that he considered it as levied. Besides, the Sheriff relied on Crutchfield's engagement to produce the negroes at the day of sale, and made use of him as his agent to keep them in the mean time.

The cases cited by Mr. Botts are not against us. 1 Ld. Raym. 725 is in our favour. 1 Salk. 79, relates to the service of a ca. sa., and has, therefore,...