This action -was begun August 19, 1895, in a Justice’s Court in the town of Antwerp, to recover damages for corn growing on land alleged to be owned by the plaintiff. The defendant answered that he was a deputy of the sheriff of the county of Jefferson, and that he levied on and sold the growing corn by virtue of an execution issued out of the County Court. The defendant in the execution is the husband of the plaintiff in this action. On the trial the defendant proved that he levied and sold by virtue of an execution issued out of the County Court of the county of Jefferson, June 27, 1895, which recited that December 13, 1894, Enoch Holkins recovered a judgment against Emery Hewitt in a Justice’s Court for thirty-three dollars and twenty-three cents, damages and costs; that a transcript thereof was filed and the judgment docketed January 30, 1895, in the office of the clerk of the county of Jefferson. On the trial the defendant did not prove the recovery of the judgment on which the execution was issued. The jury rendered a verdict in favor of the plaintiff for thirty dollars damages, and thereupon a judgment was entered by the justice for thirty-three dollars and ninety cents, damages and costs, from which the defendant appealed to the County Court, not demanding a new trial. The County Court reversed the judgment, with costs, and thereafter the county clerk entered a judgment reversing the judgment of the Justice’s Court, with costs, and adjudging that the defendant recover of the plaintiff the sum of thirty dollars, the value of the growing corn. From this judgment'the plaintiff lias-appealed to this court.
The evidence given on the trial in the Justice’s Court was insuf*474ficient to justify the verdict rendered by the jury for thirty dollars damages in 'favor of the plaintiff.. The learned county judge correctly held that the evidence showed the legal title to the land and the corn growing thereon to be in the execution debtor at the time execution was levied. Besides the above error, the evidence shows that the corn was bid in by the plaintiff’s agent for three dollars and twenty-five cents, and in case she was entitled to recover the damages should have been limited to that sum, (Vedder v. Van, Buren, 14 Hun, 250.)
In an action against a sheriff for levying on property under an execution, valid or fair on its face, in which action he seeks to justify the levy by virtue of his process, he is not, required to prove the judgment on wTkich the execution was issued. The rule is for the protection of ministerial officers,' who are required to execute processes valid on their face. If a sheriff is a plaintiff seeking to recover, property levied upon, or if he takes property from the possession of one to whom the execution debtor has previously sold and delivered it, and seeks to show that the sale was fraudulent as against creditors, he must prove the judgment as well as the execution. An execution valid on its face is a shield, but not a sword in the hands of a sheriff. (Earl v. Camp, 16 Wend. 562; Horton v. Hendershot, 1 Hill, 118; Hill v. Haynes, 54 N. Y. 153 ; Throop Pub. Off. § 758 ; Free. Ex. § 101; 7 Am. & Eng. Ency. of Law, 126, note; 22 id. 529 et seq.) This proposition was correctly held by the County Court.
• In case a" creditor seeks to subject to the payment of his claim, chattels or realty transferred by the debtor to defraud the creditor, he may do so by a levy and sale under an execution, and' then recover the chattels in replevin or the realty by ejectment ; or, after he has exhausted his legal remedy by a judgment and an unsatisfied execution, he may maintain a suit in equity to set' aside the transfer and so reach the property. When a creditor seeks to recover at law or in equity property fraudulently transferred, he must, as against the transferee, show that he has a judgment against the fraudulent transferrer; and so the rule grew up, that as between a sheriff and a transferee of an execution debtor of property transferred before levy, the sheriff claiming to subject the property to his execution must prove a judgment as well as an- execution. '
*475It was not asserted in the Justice’s Court that the judgment or the ex-ecution was invalid or irregular. The sheriff might have .proved the judgment, but he was not bound to do so, and the rule that the execution was a shield, without proving the judgment, should not be clouded by the suggestion that it was a neglect not to prove the judgment on which the execution was issued.
The county clerk wrote, signed and entered a decision in writing simply directing a reversal of the judgment of the Justice’s Court, with costs to be taxed, upon which the clerk entered a judgment reversing the judgment, with thirty-nine dollars and eighty-one cents costs, and adjudging that the defendant recover of the plaintiff thirty dollars, the value of the property in dispute. This provision was not authorized by the decision filed, but the error of the clerk should have been corrected by a motion in the County Court; not by an appeal to this court. (Code Civ. Proc. §§ 1282, 1283; Kenney v. Apgar, 93 N. Y. 539; Baylies’ N. T. & App. 6, 7; 2 Rumsey’s Pr. 610.)
The appeal in this case is not from a judgment of the Supreme Court, of which this court is a branch — the Appellate Division thereof-—-but.it is from an inferior and independent court — the County Court — and this court cannot review a question which was not before the County Court. This court may “reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from ” (Code Civ. Proc. § 1317), and thus correct the errors of the court below; but the -section does not authorize this court to correct an error of the clerk of an inferior independent court, made subsequently to the decision of such court.
Ludlum v. Couch (10 App. Div. 603) is not an authority for the position that this court may reverse or modify a judgment of the County Court for errors not committed by it, but which, by the illegal act of the clerk, have been brought. into the record subsequently to the decision of the County Court. In that case the decision of the County Court was as follows: “Judgment of the justice reversed and judgment ordered in favor of the plaintiff for seven dollars and fifteen cents damages, with ten dollars costs of this appeal.” The judgment entered by the clerk followed the decision of the County Court, and the error, being one committed by that court, was brought up by the appeal from the judgment. *476That was not, like the case at bar, an error of the county clerk, but was an error of the- County Court. •
The judgment should be affirmed, with costs, but without prejudice to the right of the plaintiff to move in the County Court for an order striking out the provision in the judgment of that court, awarding damages against her.
Green, J., concurred.
Judgment modified by striking therefrom the ' wordsand that the said Thomas T. Ballard, appellant, recover of and from the said Jessie Hewitt, respondent, the sum of $30,” and,- as so modified, affirmed, with costs.