Mariner v. Wasser

• Decision Date: 19 June 1908
• Citation: 17 N.D. 361,117 N.W. 343
• Parties: MARINER v. WASSER.
• Court: North Dakota Supreme Court

17 N.D. 361

117 N.W. 343

MARINER

v.WASSER.

Supreme Court of North Dakota.

June 19, 1908.

Syllabus by the Court.

A person in actual possession of and having actual control over personal property is prima facie the owner thereof.

A sheriff is not guilty of conversion of property when taken and sold under an execution when he finds the property in the actual possession and under the control of the execution debtor, until a demand for the return of the property is made or notice given of the ownership of the property, or the sheriff has knowledge of the actual ownership of the same.

Appeal from District Court, Stutsman County; Edward T. Burke, Judge.

Action by L. E. Mariner against H. A. Wasser. Judgment for plaintiff, and defendant appeals. Reversed and remanded.Geo. W. Thorp and S. E. Ellsworth, for appellant. Carr & Kneeland, for respondent.

MORGAN, C. J.

This is an action for damages for the conversion of personal property by the defendant sheriff, who sold it under an execution in an action to which the plaintiff was not a party. A jury trial was duly waived, and a trial was had to the court who made findings of fact and conclusions of law in plaintiff's favor, and rendered judgment in his favor for $66 and costs. The plaintiff was the owner of the property beyond dispute, as shown by the evidence. No demand was made upon the sheriff for the return of the property or for damages for its wrongful taking prior to the commencement of this action. The answer was a general denial, but the evidence, unobjected to, showed that the sheriff was acting under an execution, regularly issued in an action in which the plaintiff's brother was the judgment debtor. The property, when levied on, was in the actual possession of the execution debtor, and, when levied on, the sheriff was in no way notified or informed that the plaintiff was the owner thereof. The sole question presented for consideration is whether a sheriff is liable for damages in levying on and selling the property of a third person under execution when he finds the property in the actual possession of the execution debtor, and he is in no way advised and has no knowledge that the property does not belong to the execution debtor. In this state there is no statutory provision applicable to the question, although section 6954, Rev. Codes 1905, provides that, when property of a third person is taken under a writ of attachment, the sheriff is not liable for damages for so doing, unless such third person notifies the sheriff by a verified claim of such ownership. We have recently held that said section is not applicable to cases where the property is taken from the actual possession of such third person. Aber v. Twichell (N. D.) 116 N. W. 95. A determination of the question depends upon the force and effect of the actual possession by the execution debtor of the property when levied on.

It is a general principle of law that the person in actual possession of personal property is prima facie the owner thereof. Does the fact of such possession except the sheriff from his general liability for selling the property of a stranger to the execution writ, when there is an entire want of notice or knowledge, and he is acting in entire good faith? The plaintiff placed the property in the execution debtor's hands, and is to that extent the cause of the sheriff's mistake. Had a...