Welsh v. Bell
| Decision Date | 01 January 1858 |
| Citation | 32 Pa. 12 |
| Parties | Welsh versus Bell. |
| Court | Pennsylvania Supreme Court |
Cowan, for the plaintiff in error.—By the sale of the bark the property passed to Kestner: Dennis v. Alexander, 3 Barr 50; Scott v. Wells, 6 W. & S. 368; Bowen v. Burk, 1 Harris 148; Clemson v. Davidson, 5 Binn. 392. At all events, he had an interest which was subject to levy: Kelly's Appeal, 4 Harris 62.
The sheriff was not liable in trespass without proof of an actual seizure: 4 W. C. C. 371; 1 Barr 235.
Foster and Laird, for the defendant in error.—No property in the bark passed to Kestner for want of delivery under the contract: 2 Kent Com. 450; 1 Pars. on Cont. 441; Simmons v. Swift, 5 B. & C. 857; 1 Chitty on Cont. 300; Withers v. Lys, 4 Campb. 237; Lehigh Co. v. Field, 8 W. & S. 241.
The sheriff's return that he had levied is conclusive against him: Flick v. Troxsell, 7 W. & S. 68; Mentz v. Hamman, 5 Whart. 153; 10 S. & R. 266. And in order to maintain trespass against the sheriff, it is not necessary that he should have touched the property: Miller v. Baker, 1 Met. 28; Gibbs v. Chase, 10 Mass. 130; 7 Cow. 735; Paxton v. Steckel, 2 Barr 93; Farmers' Bank v. McKee, Id. 321.
The sheriff returned that he had levied upon the bark. The return was conclusive against him. It established beyond controversy, that he had seized the property and taken it into his own possession. A sheriff's levy necessarily disturbs the possession of the owner of the goods levied upon. It is seizure. It cannot be made in Pennsylvania, without having the goods levied upon, in actual manucapture or control: Wood v. Vanarsdale, 3 Rawle 406; Schuylkill County's Appeal, 6 Casey 358. It vests the possession so fully in the sheriff, that he may maintain trespass for any disturbance of it; and of course it divests the possession of the owner. Even the owner himself may become a trespasser against the sheriff, by removing the goods from his control. Trespass is truly an interference with the possession, as has been urged in the argument; but possession is generally but a degree of a legal right. It is not necessarily actual holding. In most cases of personal property, it differs little from the right to immediate enjoyment. Even the possession of the articles of furniture in a man's dwelling-house, is but a present right to use them at pleasure. A disturbance of this right is a disturbance of the possession. And such is a levy, because it interferes with such unlimited, unrestricted enjoyment. The interference with the possession may be either actual taking away the immediate enjoyment of the thing itself, or constructive taking away the right to the present use. No one, indeed, but an officer, clothed with legal authority, can divest the owner of that right, without actual seizure of the goods; but such an officer may. This is fully established in Paxton v. Steckel, 2 Barr 93. See also Wintringham v. Lafoy, 7 Cow. 735. These cases, and many others which might be cited, assert the doctrine that a levy upon the goods of a stranger to the execution, is an exercise of dominion over them sufficient to constitute a trespass, though there be no actual taking of the goods, — though they be not touched. It is a mistake, therefore, to argue that the official character of the sheriff has nothing to do with the effect of acts done by him. It is true that a sheriff may levy upon and sell the interest of a debtor in personal property, though the immediate possession and the right to it be in another. If the debtor have bailed or demised the goods, his interest may be seized and sold; subject, however, to the rights of the bailee or lessee. But the possession of the latter may not be disturbed: Strodes v. Caven, 3 Watts 258. The levy can be only upon the interest of the debtor. A levy upon the thing itself, disturbs the possession, and is a trespass, unless authorized by the execution. If, therefore, the bark had never been delivered to Kestner; if it remained the property of Bell, the levy made and returned by the sheriff was a trespass, and the action could be maintained. To support the action, it was not necessary, that the sheriff should have laid his hands upon it, or literally have ousted the plaintiff from its enjoyment.
Did then the property and possession, or the possession alone, remain in Bell? The jury have found that they did, and...
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