Cupples v. Level

• Decision Date: 29 July 1909
• Citation: 103 P. 430,54 Wash. 299
• Parties: CUPPLES v. LEVEL, Sheriff, et al.
• Court: Washington Supreme Court

103 P. 430

54 Wash. 299

CUPPLES v. LEVEL, Sheriff, et al.

Supreme Court of Washington

July 29, 1909

Department 1. Appeal from Superior Court, Lincoln County; W. T. Warren Judge.

Action by John W. Cupples against J. A. Level, sheriff, and others. Judgment for defendants, and plaintiff appeals. Reversed with direction to enter judgment for plaintiff.

Martin & Wilson, for appellant.

Merrill Oswald & Merrill, for respondents.

GOSE J.

The appellant on July 17, 1908, commenced this action under the claim and delivery statute (2 Ballinger's Ann. Codes &amp St. § 5262 [Pierce's Code, § 854]) by filing his affidavit and serving a copy thereof upon the respondent sheriff, and by giving to the sheriff the statutory bond; whereupon the appellant took possession of a growing crop which the sheriff had theretofore sought to seize under an execution on an ordinary money judgment. Upon the maturing of the crop it was harvested and marketed by the appellant. The case was tried to a jury. From a judgment upon a verdict in favor of the respondents, this appeal is prosecuted.

The appellant has assigned numerous errors, but the view we take of the case limits the principal inquiry to the single question whether the sheriff had made a legal levy upon the property. A brief statement of the facts as they appear in the record will suffice: On March 7, 1907, the respondent O'Connor leased to Frank P. Bell and John M. Bell section 35, in township 22, range 35, in Lincoln county. The lease provided that the lessees should deliver to the lessor as rental 'one-third free of charges' of all the grain grown upon the leased premises. It contained no covenants against assignment. On February 15, 1908, the lessees assigned the lease to one Sadie Wareham, stipulating in the assignment that it was 'subject, nevertheless, to the rents and covenants in the said indenture contained.' The lease, together with the assignment, was filed for record on the last-named date. On April 7, 1908, the respondent O'Connor recovered a judgment against the Bells and Wareham, and on the 13th day of June following an execution was issued thereon and placed in the hands of the sheriff for enforcement. On the 16th day of June the respondent sheriff sought to levy on all the right, title, and interest of the execution defendants in the crop of grain then growing upon the leased premises. His return states: 'Said levy being made by delivering to the within named defendants a true copy of the within execution, and therewith a true copy of a notice of sale setting forth that the above-described property would be sold on the 27th day of June, 1908.' Prior to the date set for the sale the sheriff was restrained from making the same. The restraining order was dissolved on the 7th day of July, 1908, and on the following day the sheriff, without a further levy, posted notices stating that the sale would occur on the 18th day of July. Before the last named day, the affidavit and bond were served. On July 7th Sadie Wareham, for a recited consideration of $1,600, conveyed to the appellant by an instrument in writing an undivided two-thirds of all the wheat then growing on the leased land. This instrument was filed for record July 8th. The appellant was not a party to the proceeding in which the judgment was entered, upon which the execution was issued and the attempted levy made. The court inter alia instructed the jury as follows: 'It is undisputed in this case that a valid levy was made upon this property by the sheriff. You have nothing to do with how the sheriff makes a levy, whether he goes out and puts up notices or how. Therefore it must be taken as affirmed by the evidence that a valid levy was made somewhere back in June; that testimony is here before you, and not disputed. The evidence is undisputed that the sale under that levy was restrained by this court, that after that time that restraining order was set aside, and I instruct you that, after the first levy, the property was in the custody of the law, and that during that time no person could acquire any title as against the sheriff, and as against that title could not acquire any title.' At the conclusion of the instructions, in answer to an inquiry by a juror, the court further instructed: 'He can't be the owner now if not prior to the levy in June. He can't be the owner now unless before that time.' Appellant properly excepted to these instructions, and has assigned error upon them.

It will be observed that the appellant acquired his interest in the subject-matter in litigation after the attempted levy. We have seen that the sheriff did not actually seize the property, and that he did nothing in the way of executing the writ except to post notices of sale and deliver a copy of the execution and notices to the judgment debtors. Did this constitute a constructive seizure? We think not. The Code (2 Ballinger's Ann. Codes & St.§ 5362 [Pierce's Code, § 522]) provides that 'personal property capable of manual delivery shall be attached by taking into custody'; and section 5269 (section 864) provides that 'property shall be levied on in like manner and with like effect as similar property is attached, and until a levy personal property shall not be affected by an execution.' We think these are the only provisions of our statute touching the levy of a writ of execution upon personal property. The return...