Walkley v. Bostwick

• Decision Date: 31 October 1882
• Citation: 13 N.W. 780,49 Mich. 374
• Court: Michigan Supreme Court
• Parties: WALKLEY v. BOSTWICK and another.

13 N.W. 780

49 Mich. 374

WALKLEY v. BOSTWICK and another.

Supreme Court of Michigan

October 31, 1882

A levy of execution against one person upon lands belonging to another and without going upon the land, creates no lien upon it and is not an actionable wrong, where there is no malice and if not alleged to be malicious it will not sustain an action for slander to title.

An action for slander to title must be grounded on malice.

The levy of an execution against one person upon lands belonging to another does not, of itself, excuse a contract purchaser of the land from fulfilling his contract; and though one who has agreed by parol to take the land makes such a levy an excuse for breaking off negotiations, his act cannot in law be treated as a natural consequence of the levy.

Levy of an execution upon the personal property of a stranger to the judgment is a positive wrong because there is positive interference with the owner's possession.

Costs for printing the record were denied upon reversal on error in a case where all the evidence was needlessly embodied in the bill of exceptions, and the record was incumbered with assignments of error which were not relied on.

Error to Wayne.

Dickman & Walker, for plaintiff.

Henry M. Duffield, for defendants and appellants.

COOLEY, J.

Action on the case against the sheriff of Genesee county and Byron Bostwick the plaintiff in an execution against one John Walkley, for wrongfully making levy of the execution on lands owned by the plaintiff, whereby a trade which she had negotiated was broken up to her loss. The plea was the general issue, and there was a trial the result of which appears before us in a printed record of 170 pages. The plaintiff does not aver that the levy on her property was malicious, or that it was made with any purpose to wrong her but she relies for recovery upon the bare facts that the levy was made upon her lands, and that a purchaser to whom she had bargained it refused in consequence to complete the bargain. As the levy could create no lien on her land, or in any manner charge, endanger or affect her title, it may well be questioned whether the alleged damage is the natural and proximate result of the act complained of. At most the act of the defendants amounted to no more than a formal assertion that the ownership of plaintiff's land was in John Walkley, and that they proposed to maintain that assertion in legal proceedings. But this assertion would not have justified a purchaser in throwing up his bargain. If he had previously entered into a valid contract the levy could not have excused his failure to perform it, and if he had only agreed...