This was an action of replevin for a tailor's shop, counter, drawers, stove, c., c. Narr. in the detinet. Pleas, non-cepit; property in Joseph M'Laughlin; and property in defendant.
The defendant gave in evidence a judgment at the suit of George E. Fisher against Joseph M'Laughlin; an execution issued on the 19th of July, 1841, and laid in defendant's hands as sheriff of Sussex county, who made a levy on the property for which the replevin in this case issued, on the same day, at twenty minutes after eight o'clock in the evening.
In behalf of the plaintiffs in the replevin, it was proved that the property (which was a tailor's shop on ground rent, and fixtures,) had been sold by M'Laughlin to James Anderson, on the 16th of *Page 513 July, 1841, and a conditional bill of sale executed for it: and that Anderson took possession under this bill of sale: that Layton Sipple recovered a judgment against Anderson on the 18th of July, and issued an execution on the 19th: that Anderson on the night of the 19th, between the hours of eight and ten. o'clock, sold the property to Layton Sipple; executed an assignment of the bill of sale from M'Laughlin; and, on the morning of the 20th, put them in possession of the property.
Houston, for the defendant, moved a nonsuit, on the ground that plaintiffs had not proved a possession, and the taking from their possession. (2 Leigh's N. P. 1384.)
Ridgely. — The execution is a lien on the property from the laying the writ in the sheriffs hands; but does not operate to change the possession, until an actual levy and seizure. The sheriff has no actual or constructive possession until the levy. (Dig. 394; 1 Harr. Rep. 107; 12 Lava Lib. 7, 88, (171.) But a vendee has. From the moment of sale he has a constructive possession, upon which he can maintain trespass.
Houston. — The act of assembly declares that the execution shall bind the property from the time it is delivered to the sheriff. This binding is not merely a lien, but gives the sheriff a right of possession from that time, upon which he could bring trespass.
Ridgely. — The execution was against M'Laughlin; but we claim under Anderson, who was in possession, prior to the sheriff's levy. (1 Chit. Plead. 63; 2 Leigh's N. P. 1401.)
Houston. — This is carrying the assignable quality of choses in action to an unheard of extent. If the sheriff seized these goods while in possession of Anderson, he might bring replevin; but he cannot assign that right to another.
By the Court. — The property in this case was levied on as the property of M'Laughlin, at twenty minutes past eight o'clock, P. M., of the 19th of July. On the 16th of July a bill of sale of this property, either absolute or conditional, was made by M'Laughlin to James Anderson for the consideration of $75, in payment of a debt as to $37 50, and as to the balance of $37 50 in trust for M'Laughlin's creditors, subject to a right of redemption: under this Anderson went into possession of the property; and executed a bill of sale for it to Layton Sipple on the 19th of July at night, between eight and ten o'clock. *Page 514
The question then is, whether Layton Sipple had, at the time of the sheriff's levy, such a possession of these goods, either actual or constructive, as will enable them to maintain replevin. Originally, in England, a fi. fa. was held to bind the goods of the defendant from its test, which often operated great injustice by invalidating intermediate fair sales; to remedy which the Stat 29,Car. 2, ch, 3, sec. 16, commonly called the statute of frauds, enacted that the execution should bind the goods only from the time of its delivery to the sheriff, which is the provision of our act of assembly. (Tidd's Prac. 914.) But we apprehend that this lien does not operate to change the property in the goods until actual seizure, in England; or a seizure, or at least an inventory and appraisement here; which seems to be regarded in our practice as equivalent to a levy. (1 Harr. Rep. 107.)
It is admitted in this case that actual possession was not delivered to Layton Sipple, until after the execution against M'Laughlin went into the sheriff's hands. But it is contended, that as the vendees under the bill of sale of the 19th of July, they had such a constructive possession as will entitle them to maintain replevin against the sheriff for taking the goods afterwards.
But the question still is, did the sheriff take the goods after the plaintiffs acquired either an actual or constructive possession? The plaintiffs are bound to prove this, there being a plea of non-cepit. The proof is that the bill of sale was made between eight and ten o'clock, P. M., and the inventory and appraisement at twenty minutes past eight o'clock on the same day. The sheriff so states in his return. He is a party here, and this may be controverted; but if not disproved we must take it to be true, that the sheriff was in actual possession of these goods at twenty minutes past eight o'clock on the same evening when the plaintiffs, between eight and ten o'clock, purchased the goods of Andersen. This proof does not satisfy us that the sheriff took the goods from their possession.
Neither can we sustain the action on the suggestion that plaintiffs sue as assignees of Anderson, who was in possession when the sheriff levied. Such a taking is not the wrong complained of in the declaration, which sets out a possession in Layton Sipple.
Nonsuit granted.