1. The first point made by the plaintiff’s counsel is, that the circuit judge erred in admitting proof that the proceeds of the sale of the horses and cart in question were applied by Lyon, who purchased the property at the sale by Sheriff Potter, upon the execution against Beach. The defense set up was a failure of title in the defendant, to the property for which the note was given. To establish it, the defendant gave evidence of a judgment and execution against William A. Beach, of whom he purchased the property, and a levy and sale by the sheriff, and that at the time of the levy, which was before the purchase by the defendant, the property was in the possession of and owned by Beach. At the period of the trial, at which the question arose, the defendant had given evidence of the levy and sale. Of what consequence it was that Lyon, the purchaser, afterwards sold the property and applied the proceeds to the payment of the judgment against Beach, I am at a loss to conjecture. The admission of irrelevant evidence is error; and I see no way of avoiding a new trial upon this ground; as it is impossible to say what influence the evidence may have exerted on the minds of the jury. (Clark v. Vorce, 19 Wend. 232.)
2. I think there was no error in the refusal of the circuit judge to charge the jury that the defendant could not avoid the payment of the note, if he knew of the levy at the time he gave it. It is a principle of law that in every sale of personal property there is an implied warranty, by the vendor, of title in himself. (Chitty on Cont. 133. 2 Bl. Com. 451. 3 Id. 166. Defreeze v. Trumper, 1 John. R. 274.) These authorities only go to the extent of showing, that in such sale, the vendor impliedly warrants that he is the owner of the goods and has good right to sell. They do not settle the question whether the warranty in such case extends to a prior lien or incumbrance. In the present case, William A. Beach, if the property was his, or if, as he swears, it was his father’s, and he was authorized by his father to sell it, had a right in either case to sell it to the defendant, and the general property would pass, notwithstanding the lien of the execution. The question then -is, whether the *626rule referred to, extends the implied warranty to such lienX The rule is borrowed from the civil law, as appears by Sir William Blackstone, in his commentaries. (2 Bl. Cam. 451.) On looking into Domat, I find the rule, as established by the civil law, extends the warranty to liens and incumbrances, as well as to the title. (Domafs Civil Law, 75, 76, book 1, tit. 2, Of the Contract of Sale, § 10, Of Eviction, and other troubles to the purchaser.) The essence, then, of the contract of warranty in the present case was, that the vendor had a perfect title to the goods sold, at the'time of the sale; that the same were unincumbered, and that the vendee should acquire, by the purchase, a title free and clear, and should enjoy the possession without - disturbance by means of any thing done or suffered by the vendor. It was, therefore, immaterial, whether the defendant knew of the levy at the time he purchased. He had a right to rely upon the warranty; and having been evicted, his right of action was complete upon Beach, so far as this point is concerned.
One part of the plaintiff’s position in the exception under consideration was, that if the defendant knew of the levy, there was no fraud practiced upon him. William A. Beach had testified that when he sold the property to the defendant, he told him there was a levy on it, but that he did not think it was good. If the question of the defendant’s knowledge of the levy was material in that aspect, the circuit judge should have so advised the jury, as requested. But the gravamen of the defense was not that a fraud had been practiced upon the defendant, but that the consideration of the note had failed; and I think, therefore, the question of fraud, in view of the objection, was entirely immaterial, and that no error was committed by the judge in declining to charge as requested, in this respect.
3. The judge charged the jury that the defendant could dispute the title of Bildad Beach to the property for which the note was given, in the same manner and with the same effect that a creditor of William A. Beach could have done; and that if by reason of the property being left in the possession of William A. Beach; after the sale by him to his father’, it was still *627liable to be taken on execution against him, then the defendant had made out a good defence to the note. The plaintiff’s counsel contends that the defendant is not in a situation to raise the question of the validity of the sale by William A. Beach to his father, without showing a judgment and execution and a valid levy.
It should be borne in mind that the point of the defense was that the consideration of the note, which was the horses and cart, was taken from the defendant by virtue of the execution against William A. Beach, in pursuance of a levy made prior to the sale to the defendant. To sustain such defense, any evidence was admissible which could have been competent for Lyon, the purchaser at the sheriff’s sale, of the property in question, to have given, in an action of trover, trespass, or replevin, by the defendant against him, for the property. In such action Lyon would have to justify by the very same evidence as was given upon the trial in this cause. The burthen of proof on the defendant here was, to show that Lyon had a right to the property, and that was all he had to prove, except that Lyon had taken the property by virtue of such right. The judgment and execution and sale were duly proved; and if the proof of the levy was sufficient, the defense was perfect, provided by reason of the property being left in the possession of William A. Beach, after the sale by him to his father, it was still liable to be taken on execution against him. Whether it was so liable, it does not appear that the judge gave any opinion; nor that he was requested to do so. This being a bill of exceptions, we can notice only such questions of law as were passed upon at the trial, or as were raised and the judge refused to decide.
4. The only remaining question raised in the case is, upon the sufficiency of the levy. If there was not a valid levy, the defendant acquired a good title to the property, and of course his defense fails.
When the supposed levy was made, the officer did not see the property, and did not know where it was. He sat on his horse at the time, in the road; and the defendant in the execution named over to him what property he had, and the officer made *628a memorandum of it on a piece of paper. This appears by the testimony of Mr. Potter, the sheriff, who made the levy, and is the strongest evidence in the case to shoAV a valid levy.
Mr. Beach SAvears that he did not turn out the property to Sheriff Potter on the execution. He says he told him such property was on the farm, but that it belonged to his father ; and told him Iioav it became his. The judge charged the jury on this subject, that the levy as proved by the Avitness, Potter, was a good and sufficient levy, so far as William A. Beach was concerned, and Avould hold the property as against him; and the defendant acquired no title to the property by the purchase, and had a good defense to this suit, unless the plaintiff shoAved affirmatively that the sale to Bildad Beach Ayas made in good faith, and without any intent to defraud creditors. I think the fair interpretation of this part of the charge is, that the levy as proved by Potter, Avas good as against the defendant in the execution only; and that if the plaintiff proved affirmatively that the sale to Bildad Beach was made in good faith and without any intent to defraud creditors, it Avas not good, and the defendant was in that case entitled to hold the property under his purchase.
In this charge, the evidence of William A. Beach touching the levy, is laid out of vieAV. The judge Avas requested to charge the jury, that the transaction spoken of by the Avitness, Potter, ayus not in law a levy; and that under it he had no right to take the property from the defendant, &c., which request the judge declined.
The validity of the levy was made to depend upon the question, whether the purchase by Bildad Beach was in good faith, and Avithout any intent to defraud creditors. In this, I think the judge erred. Admitting the^purchase by Bildad Beach to have been in bad faith, and with the intent to defraud the creditors of William A. Beach; yet if the purchase by the defendant was in good faith and Avithout any fraudulent intent, (and he is not at liberty to contend otherwise,) he Avas protected, unless the levy was in all respects strictly legal and valid.
We are then to examine, whether the levy was valid and *629effectual as against all persons whomsoever; for unless it was, the defendant whose purchase is to be deemed to have been made in good faith, and accompanied by possession of the property purchased, is not to be affected by it.
It was held in Ray v. Harcourt, (19 Wend. R. 495, 497,) that to constitute a valid levy, the goods should be within the view of the officer, and subject to his immediate disposition and control. In that case, the property in question was a part of it a mile and a half, and the residue two and a half miles distant from where the levy was made by the officer ; and the levy was held insufficient.
In Van Wyck v. Pine, (2 Hill, 666,) the court reasserted the same doctrine, and applied it to a case where the officer went on to the farm of the defendant in the execution, and made a levy on his property, a part of which was in a field where the officer was at the time with the defendant, and in sight; and another part, being a pair of oxen, and the property in question, were in another lot on the same farm, about eighty rods distant, but were not seen by the officer by reason of an intervening hill.
In the case of Ray v. Harcourt, the question was between conflicting executions ; and in Van Wyck v. Pine, between the officer claiming to have made the levy, and a subsequent purchaser from the defendant. These cases, I think, govern the present. Potter, the sheriff, did not see the property in question, and did not know where it was. It can not be contended that it was under his immediate disposition or control. It was not an actual levy so as to affect persons acquiring title subsequently derived from the defendant in the execution. The levy was unquestionably sufficient, as against William A. Beach. I very much doubt, whether an actual seizure of the property is ever necessary, as against the defendant in the execution, which in a court of record, binds the personal property from the time of the delivery of the execution to the sheriff; and if it is required, it is competent for him by his acts or declarations, to Waive it. In the disposition of this point, I lay out of view the evidence of William A. Beach, that he told the defendant there *630had been a levy; because that was only important on the question, whether he (the defendant,) purchased in good faith. That question was not submitted to the jury.
ÍTew trial; costs to abide the event.