Defendant has filed a plausible and vigorous petition for rehearing. He says this is an action in replevin; that there is no issue as to a levy made by the defendant; that the court failed to distinguish between a levy where manual possession is taken and a levy where the property is allowed to remain in the custody of the judgment debtor, or a third party; and that it is only the judgment debtor who can question irregularities concerning levies.
We have not overlooked that this is an action in replevin. Defendant says that plaintiff must recover on the strength of his own title and not *Page 140 on the weakness of his adversary. There is nothing new in this declaration. It is the established rule of this court. See Sylvester v. Mackey, 48 N.D. 256, 183 N.W. 1019. He argues that under a general denial the defendant in a claim and delivery case may show the plaintiff's title is fraudulent as to creditors; but this is when the defendant is other than a trespasser. If an officer claiming to hold property under a levy is the defendant he may show such fraud provided he has a lawful levy. He stands in the place of the judgment creditors and unless he has an interest in the property he cannot attack the title. Such a title is not void. It is merely voidable. After the prima facie proof of title, there must be in this case, a levy before sale can be attacked as fraudulent.
There is an issue as to levy. That is the defense. It is not waived by the plaintiff merely because he said that the defendant had taken it under a levy or claimed it under a levy. He does not say by this, that the attempted levy is valid. Of course, the sheriff claimed the property under a levy. The case cited by the defendant, Schoonover v. Osborne Bros. 108 Iowa, 453, 79 N.W. 263, does not apply. If the plaintiff were the defendant and asserting a counterclaim because of a levy he could not repudiate a levy, and ask damages because of it. The plaintiff is not claiming anything under the levy. The court does not overlook the question of any difference between property capable of manual delivery and property incapable of manual delivery. The case cited by defendant Jolly v. Dunlop, 34 S.D. 213, 147 N.W. 980, is not in point even though the court there says that the property was capable of manual delivery and therefore did not require the service of a copy of the warrant of attachment; because under the statute of South Dakota in force at that time it was only in case of property incapable of manual delivery that a copy of the warrant must be left with the "individual holding . . . the property together with a notice showing the property levied on." See § 216 of the S.D. Code of 1903. In case of property capable of manual delivery nothing was said in the Code about requiring a copy of notice to be given. An inventory must be made of the property and filed with the clerk. See § 211 of the same Code. Neither did the S.D. Code prescribe any method of levying under execution as in our Code, which says the levy is made under the same manner as a levy under attachment. See article 1, chapter *Page 141 13, Code of Civil Procedure, S.D. 1903. The statute of South Dakota in force now is similar to ours with reference to the levy of a warrant of attachment and requires a copy of the warrant to be delivered to the person from whom the property is taken. See subdivision 3, § 2442, S.D. Code 1919. The Code says the law was taken from the Code of North Dakota. Thus the cited case is under a different statute. The statute expressly provided that it was only in case of property incapable of manual delivery that a copy of the warrant had to be left. That is not our statute. The rule set forth in 6 C.J. 226-228 cited by the defendant has no bearing in this case as it does not touch the issue. The rule involved here is set forth in 6 C.J. 220 with supporting authorities and says the statute must be followed strictly and especially when levy is asserted against third parties. And on page 221 says that when the statute requires notice of levy to be given this provision must be complied with.
We have already in the main opinion, disposed of the question of the necessity of complying with this Statute with reference to third persons. This is not protection for a judgment debtor alone. It is for the protection also of the third person whose property is taken away so that he will know why his property is taken or claimed.
The petition for rehearing is denied.
BIRDZELL, Ch. J., and BURKE, CHRISTIANSON, and NUESSLE, JJ., concur.