Mangum v. Hamlet, 30 N.C. 44, 8 Ired. 44 (1847)

Dec. 1847 · Supreme Court of North Carolina

30 N.C. 44, 8 Ired. 44

ELLISON G. MANGUM vs. WILLIAM J. HAMLET.

An officer, who levies oil personal property and leaves it in possession of the defendant in the execution, only loses his lien as against other executions, under which the property is seized and taken in possession.

Therefore, where A. a constable in Orange County levied on personal property and left it in possession of the defendant in the execution, and B. a constable in another county, with the assent of the defendant, but without any legal process in Orange, removed the property to his own county and there sold it under executions issuing in that county; Held, that A. was. entitled to recover from B. in an action of trover and conversion.

’ Appeal from the Superior Court of Law of Orange County, at the Spring Term, 1847, his Honor Judge Manly presiding.

The action was trover for two mares, a colt, and some corn; and was tried on the general issue. Several points were made for the defendant on the trial, on which the presiding Judge gave opinions; but it is only necessary to state one of them, as the counsel here abandoned all the others. As to the point insisted on in this Court, the case is as follows : The plaintiff was a constable in Orange County, and had in his hands several Fi: Fa’s on Justices’ judgments against John Boling ; and on the Cthday of October, 1842, he levied them “on a cream colored mare and her colt, the defendant’s crop of corn, say from 25 to 40 barrels, and crop of fodder.” The The plaintiff left those things in Boling’s possession on Ms plantation in Orange. He afterwards received other executions against Boling’s property, and on the 3d of November, 1822, he levied them “on a sorrel mare, the defendant’s crop of tobacco hanging in the barn, his crop of corn in the field, supposed to be 30 or 40 barrels, and five stacks of fodder;” and these things also the plaintiff did not remove but left them on the place in the possession, of Bo» ling. The plaintiff then gave evidence, that the defendant, as a contrivance betweenvhim and Boling to defeat the levies of the plaintiff, and give the defendant the benefit of the property, removed the mares, and colt, and the corn, on the 4th and 5th days of November, 1842, out of Orange to the defendant’s residence in Person County, and there had them sold.

On the part of the defendant evidence was given, that on the 3d of November, 1842, he obtained judgments against Boling before a Justice of the Peace in Person, and sued out Fi: Fa’s : and that as he carried this property into that County, it was seized under them by a constable of Person, and afterwards duly advertised and sold.

The counsel for the defendant moved the Court to instruct the jury, that by leaving the property in the debtor’s possession, the plaintiff abandoned his levies; espe-pecially on the cream colored mare and colt, or was-guilty of a fraud by which he lost his property, in the' articles seized by him. But the Court refused to give the-instruction; and on the contrary directed the jury, that by coming into Orange, and taking the property there,, without process, and with the view of depriving the-plaintiff of it, the defendant was guilty of a conversion, which entitled the plaintiff to recover, although Boling might have assented to it, and assisted in its removal out of the County. A verdict was given for the plaintiff; and from the judgment the defendant appealed.

J. H. Bryan, McRae, W. II. Haywood and JE. G. Reade, for the plaintiff.

Norwood and Waddell, for the defendant.

Ruffin, C. J.

The Court thinks the judgment must be affirmed. The instruction is impeached, on the authority. of Roberts v. Scales, 1 Ired. 88. But the defendant does not bring himself within that case, for the reason pointed out by his Honor.

There, each party was a creditor proceeding on process; so that the one who last levied, and took the property into actual possession, shewed rights which might be affected by the fraud or laches of the other officer. But on whom can this plaintiff be charged with a fraud ? Certainly, it was not a fraud on Boling to leave him in possession; and so far as the defendant acted under Boling’s directions, or by his consent, he must stand in Boling’s shoes. If, however, he could get olear of that connexion, he would then be a mere wrong-doer in taking the property in Orange without any legal authority operating in that county ; and as he acted with a view of depriving the plaintiff of the property, such taking and the removal of the property was in itself a conversion, which entitled the plaintiff to this action. If the defendant wished to impeach the plaintiff’s levy, he should have obtained executions in Orange, which would have authorised him to seize the property. Until he did so, he had no right or authority to intermeddle ; and could not In a legal sense be prejudiced by the act of the plaintiff.

Per Curiam-. Judgment affirmed'.