Fleming v. Clark

• Decision Date: 10 May 1886
• Citation: 22 Mo.App. 218
• Parties: BENJAMIN F. FLEMING, ADMINISTRATOR OF H. H. SIMPSON, DECEASED, AND JAMES F. BRIDGEMAN, RE-spondents, v. JAMES CLARK, Appellant.
• Court: Missouri Court of Appeals

22 Mo.App. 218

BENJAMIN F. FLEMING, ADMINISTRATOR OF H. H. SIMPSON, DECEASED, AND JAMES F. BRIDGEMAN, RE-spondents,

v.JAMES CLARK, Appellant.

Kansas City Court of Appeals, Missouri.

May 10, 1886.

APPEAL from Holt Circuit Court, HON. H. S. KELLEY, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action for the recovery of the possession of personal property. The action was instituted by H. H. Simpson and James F. Bridgeman; afterward Simpson died and his administrator Fleming was made a party plaintiff.

As to some of the facts there was a contention between the parties. Other facts were admitted. Determining the contention as to all the disputed facts in favor of the plaintiffs, the facts of the case may be stated as follows:

The defendant was constable of Benton township, Holt county, Missouri. Upon May 7, 1881, a valid execution against Muir & Campbell was delivered to him, issued by a justice of the peace. On May 19, 1881, the sheriff of Holt county seized the property in suit, under a writ of attachment against Muir & Campbell. Muir & Campbell retained the possession of the property by giving to the sheriff a forthcoming bond therefor. Muir & Campbell were indebted to an amount exceeding a thousand dollars to Simpson and Bridgeman. On May 20, 1881, Muir & Campbell transferred and delivered the said property to Simpson and Bridgeman on account of said indebtedness. On May 22, 1881, the defendant seized and levied upon the property under the execution. Simpson and Bridgeman thereupon brought this action.LANCASTER, THOMAS & LACY, for the appellant.

I. To entitle plaintiffs to recover in this case it is not sufficient that defendant did not have a right to the immediate possession of the property at the time of the institution of this suit; but plaintiff smust have had a right to the immediate possession thereof. Bayless v. Lafaivre, 37 Mo. 119; Gartside v. Nixon, 43 Mo. 138.

II. There was a valid levy of the execution on the morning of May 19, 1881, prior to the levy of the writ of attachment, and prior to the transaction by and through which plaintiffs claim the property. Douglas v. Orr, 58 Mo. 573.

III. Plaintiffs are estopped, by the act of Simpson in delivering to the constable a written notice, under section 3023, Revised Statutes, of his and Bridgeman's claim to the property, from denying that there was a levy of the execution in the forenoon of May 19, 1881. Hundley v. Filbert, 73 Mo. 34, and cases cited.

IV. The execution was a lien on the property in the hands of the execution defendants Muir and Campbell from the time it came into the hands of the constable on May 7, 1881. The writ of attachment was levied on the property, subject to the lien of the execution, and plaintiffs, having notice of the execution, took the property subject to its lien. Rev. Stat., sect. 3017.

V. There was no change of possession of the property at the time of, nor after, the alleged transfer thereof by Muir & Campbell to Simpson and Bridgeman. Stern v. Healey, 68 Mo. 262; Wright v. McCormick, 67 Mo. 426; Claflin v. Rosenberg, 42 Mo. 439; Bishop v. O'Connel, 56 Mo. 158.

JOHN W. STOKES and E. VAN BUSKIRK, for the respondents.

I. The execution in the hands of the constable was no lien upon the property of Muir & Campbell, as against respondents, prior to the making of the levy. The levy was subsequent to the sale and transfer of the property in payment of the indebtedness. And the mortgage to plaintiffs by Muir & Campbell was valid between the parties, whether properly acknowledged and recorded or not, and the transfer of the property in satisfaction of it was valid and binding.

II. As to the time of the levy, the issue was fairly submitted to the jury under an instruction proper under the evidence. This court will not interfere with the verdict where the issue has been properly submitted and the evidence tends to justify the verdict. There is no estoppel. Defendant claims a levy. Plaintiffs deny it, and the issue was submitted under proper instructions and found for plaintiffs. See section 3023, Revised Statutes, as to notice of claim.

III. The issue as to change of property and of possession was also properly submitted to the jury, and the issue found for plaintiffs.

IV. The case was fairly submitted on all the issues, the verdict was for the right party, and the judgment should stand.

HALL, J.

The defendant denied many of the facts in the foregoing statement, but the plaintiffs controverted none of them. The plaintiffs made their right to recover depend upon the facts as stated.

The question in the case is: Under the facts were the plaintiffs, at the time of the institution of this action, entitled to the immediate and exclusive possession of the property as against the defendant?

The possession of the property by the sheriff placed it in the custody of the law, and it was not, while such possession continued, subject to levy by the defendant. Drake on Attachment, sects. 251, 267; Freeman on Executions, sects. 129, 130; National Bank v. Owen, 79 Mo. 431.

The lien of the attachment was not lost by Muir & Campbell retaining the property under the forthcoming bond. Evans v. King, 7 Mo. 413; Labeaume, etc., v. Sweeney, 21 Mo. 166. Their possession was substituted for the possession of the sheriff. They were his bailees. The property continued to be in the possession of the law, and was not subject to levy by the defendant. Drake on Attachment, sect. 267; Thompson v. Marsh, 14 Mass. 269; Hagan v. Lucas, 10 Peters, 400; McKinney v. Purcell, 28...