Neary v. Cahill, 20 Ill. 214 (1858)

April 1858 · Illinois Supreme Court

20 Ill. 214

Edward Neary, Appellant, v. James Cahill, Guardian, etc., et al., Appellees.

APPEAL FROM LA SALLE COUNTY COURT.

An execution against one of several tenants in common cannot be levied upon personal property held in common with others; the proper way is to make a levy upon the interest only of the judgment debtor.

This was an action orginally brought before a justice of the peace, in the name of the plaintiff below, against defendant below, to try the right of property in a certain mare, levied upon by a constable, by virtue of an execution issued by said justice.

Trial by jury, who found for the claimant, and judgment accordingly.

The cause was tried before Champlin, County Judge.

D. L. Hough, for Appellant.

Strain & Bull, for Appellees.

Caton, C. J.

This was a trial of the right of property, under our statute. The property belonged to the defendant in the execution and four others, as tenants in common, and the entire property in the mare was levied upon as belonging to the defendant in execution exclusively; and we think the court properly held that the claimants, who were the other tenants in common, had a right to recover on this trial. Had the levy been upon the interest alope of John Duffy, which was one-fifth, the other tenants in common would have had no cause to complain, and it may be, even, that the constable might have taken exclusive possession of the property for the purpose of selling that interest; but he had no right to levy upon and sell the entire right or title to the property; and his attempt to do so made his act wrongful, and the claimants were properly allowed to recover.

The judgment must be affirmed.

Judgment affirmed.