Nall v. Granger

• Decision Date: 09 July 1860
• Citation: 8 Mich. 450
• Court: Michigan Supreme Court
• Parties: James Nall and another v. William L. Granger

8 Mich. 450

James Nall and another v. William L. Granger

Supreme Court of Michigan

July 9, 1860

Heard July 7, 1860 [Syllabus Material] [Syllabus Material]

Error to Eaton circuit.

Nall & Duncklee sued Granger, in replevin, for certain oxen and a horse, which they claimed under a chattel mortgage given by M. H. Crafts, September 1st, 1857. Defendant claimed the property as purchaser at a sale of the same, made November 23d, 1857, by the sheriff of Eaton county, by virtue of an execution against Crafts.

On the trial, after plaintiffs had proved their mortgage, defendant called George N. Potter, who testified that he was sheriff of Eaton county from January 1st to and including November 23d 1857. He then produced the execution by virtue of which the sale in controversy was made, and read the following indorsements thereon:

"State of Michigan, county of Eaton, ss: By virtue and with the consent of Myron H. Crafts, I have, this 23d day of November, 1857, sold his interest in the goods and chattels levied upon by virtue of the within writ, for the sum of one hundred dollars.

"Geo. N. Potter, Sheriff."

"State of Michigan, county of Eaton, ss: By virtue of the within writ, I have, this 26th day of August, 1857, levied upon the following goods and chattels, to wit: one horse, harness and buggy, two yoke of oxen, one two-year-old steer, one yearling steer, one yearling heifer, and eight sheep.

"Geo. N. Potter, Sheriff."

On his cross-examination, said Potter testified that he could not tell exactly when he signed the levy; that he signed it after the time of the levy, but before advertising the property; that the levy was on the execution at the time of making the sale.

Plaintiffs' counsel then proposed the following question to the witness: Did you see the property at the time of making the levy, and if so, where was it? Which question was objected to by defendant on the ground that it tends to impeach the levy; and the objection was sustained by the court.

After defendant had rested, plaintiffs called Crafts, who testified that before November 10th, 1857, the property in controversy had run at large in the woods. Plaintiffs' counsel then asked him the following question: Had you any knowledge of the levy before November 10th, 1857? This question being objected to, counsel stated their claim to be:

First. If in fact a levy was made on the 26th of August, and no notice given or possession taken of the property until the tenth day of November following, and in the mean time, without knowledge or collusion, the plaintiffs received from the witness the property, then the defendant could have acquired nothing by his purchase.

Second. Plaintiffs propose to show that no levy had in fact been made prior to November 10th, 1857; that the defendant knew this fact, and knew of this mortgage, and by collusion with the sheriff at the time of the sale, was to procure from the sheriff a return that he had made such a levy before the execution of the mortgage.

The court decided that the evidence offered was not admissible to contradict the return of the sheriff of the fact of his levy upon the property, and the time of making it.

The plaintiffs' counsel then asked the witness the following question: Have you had conversation with the defendant in relation to the subject matter of this controversy? If so, what did he state as to his knowledge of a levy upon the property? This question being objected to, the counsel stated that he proposed to show by this witness, and others whom he named, that the defendant had said, since the commencement of this suit, that he knew the sheriff had not made a levy upon the property purchased at the sheriff's sale, before the execution and delivery of the chattel mortgage to plaintiffs, but that the sheriff then agreed to indorse his levy on said execution as of a day prior to the execution of said mortgage, which was a condition upon which he purchased the property. The court sustained the objection, and ruled out the evidence.

Judgment having passed for defendant in the court below, plaintiffs filed exceptions, and brought error.

Judgment reversed, and a new trial granted.

Shaw & Bronson, for plaintiffs in error:

The statute does not require the sheriff to indorse the date of his levy; and the return, therefore, is not evidence of the time of the levy: 5 Ired. 198; 11 Fost. 16; 2 N. H., 391.

In order to constitute a valid levy on goods, they must be within view of the officer at the time, and subject to his immediate disposition and control; especially as against one who subsequently purchases them from the debtor without notice of the levy: 2 Hill 266; 5 Denio 198; 3 Wend. 445; 23 Wend. 490; 14 Wend. 124; Watson on Sheriffs, 172, 191; Crocker on Sheriffs, 28, 30.

The return of an officer, whether on mesne or final process, is prima facie evidence only, and liable to be disproved; and seldom conclusive as to third persons: 5 Ired. 198; 6 Conn. 334; 19 Vt. 80.

If the defendant knew of the fact of the plaintiffs' rights to the property, under the chattel mortgage, and was guilty of collusion with the officer, he could acquire no rights by his purchase: 4 Blackf. 230; 15 Mass. 230; 2 N. H., 81; 1 N. H., 68; 1 Minn. 434; 25 Pa. St., 413.

Blair & Gibson, for defendant in error:

A legal and sufficient return by an officer can not be contradicted, except in a suit against the officer himself: 17 Mass. 600, and cases cited; 8 Greenlf. 272; Ibid., 211; 8 Mass. 334; 11 Fost. 99; 35 N. H., 421; Ibid., 9. It is not traversable, and the court will not permit it to be collaterally attacked, even if the officer is shown to have been guilty of fraud and collusion: 5 Cal. 53; 12 Ohio 235; 3 Lit. 129, 132.

Even when a party has been guilty of some trick or device designed to get the property at less than its value, it will not be void unless it be shown that he actually succeeded in getting it for less than it would bring at a fair sale: 25 Pa. St., 413; 28 Pa. St., 433. The only way to remedy the collusion is to move the court to set aside the sale; it can not be attacked collaterally.

That the legislature intended that the fraud of the officer should be no exception to the general rule, is seen in the severe penalty provided in that case: Comp. L., § 4492. But the attempt here is to get rid of the levy. To allow this, would be a most dangerous practice. It is not pretended that there was any thing unfair in the sale. If it would have been valid as to any other bidder, why not as to Granger, the highest, even though there was collusion.

OPINION

Christiancy J.:

Whether as a general rule, the return of a sheriff upon an execution is conclusive upon the defendant in the execution, and those...