The property in question was delivered by Willmarth, the general owner, to the plaintiff, to secure the payment of a debt owing to the plaintiff.
Besides the delivery of the goods to him as a security for his debt, the plaintiff was authorized, by express arrangement between him and the owner, to sell the goods, and to apply the avails to the extinguishment of the debt for which they were pledged. On the delivery of the goods, the price at which they were to be accounted for to the owner, was fixed, and it was part of the arrangement between the parties, moreover, that the proceeds of the goods above the price so fixed, should go to the plaintiff, and be retained by him as his profit exclusively.
The plaintiff's right of possession in this case, was coupled with a right to sell, and an interest beyond the mere security for his debt; which, I think, distinguishes this from the ordinary case of a pledge, and gives him the exclusive possession and precludes absolutely the removal of the goods by the Sheriff. But viewing this as the ordinary case of a pledge, it is entirely clear that the statute, which has changed the common law, and authorizes the sale of the interest of the pledgor in the property pledged, does not authorize the removal of the property out of the possession of the pledgee.
The statute, section 20, 2 R.S., page 366, which authorizes *Page 36 the sale on execution of the pledgor's interest, qualifies the right which the purchaser acquires therein to the precise interest of the pledgor, and expressly secures the possession of the goods to the pledgee, until a compliance by the purchaser with the conditions of the pledge.
The provisions of the section, taken together, negative, by implication at least if not expressly, the right of the officer, or of any other person, to remove the pledge from the possession of the pledgee. At all events it contains no authority for the officer having the execution to take the goods pledged into his own possession, or to do any other act in respect thereto than to dispose of the same by sale. The Sheriff, by the levy, acquires no other right in the goods pledged than that which, at the time, remained in the pledgor, and as the pledgor clearly had not the right to the possession himself, and could not legally interfere with the possession of the pledgee, so the Sheriff, by his levy, acquired no such right.
By the common law and the adjudications of our Courts, prior to the Revised Statutes, the interest of the pledgor in property pledged, was not the subject of seizure and sale on execution. (Story on Bailment, sec. 353; 14 Johns. 222; 17 Johns. 116; 5 Johns. 335; 4 Cow. 461; Revisers' Notes, 3 R.S., page 727, sec. 17.) Although in the cases cited on the argument, (4Wend. 292, and 10 Wend. 318) property in the nature of a pledge was sold on execution, yet the question of the right to sell was not raised, nor passed upon by the Court in either case.
An actual taking and removal of the pledge is not a necessary incident to a sale thereof by the Sheriff, or in other words, the right to sell does not imply a right to remove. The sale may be effected without an actual interference with the pledgee's possession. The Sheriff, by the 23d section of the same statute, which is an enactment declaratory of the rule as previously settled by judicial decision, requires the presence of the property at the time and place of the sale. This unquestionably gives the Sheriff authority to enter upon the premises where the property may be situated, and have the *Page 37 inspection of the property, but does not authorize, either expressly or by necessary implication, its actual taking orremoval. The two sections together give him the right of seeing, levying upon and selling the property, but give him no right to take it out of the possession of the pledgee except upon the terms provided by the 20th section. Having the right, therefore, to visit the place where the goods may be deposited for the purpose of making a levy, he has the same right, also, on the sale subsequently, with all such persons as may attend as bidders, to enter upon the same premises to accomplish the sale. The Sheriff, and all persons accompanying him as bidders, will be protected, and are not liable as trespassers. In the case of the People vs. Hopson, (1 Denio 575) it is expressly settled that "where a levy under an execution is made upon personal property which is left in the defendant's possession, the officer may sell on the defendant's premises, and third persons may rightfully attend there as bidders." Nor is the argument that the security of the Sheriff renders an actual taking and removal necessary, well founded. It does not follow that he would be accountable to the judgment creditor for the value of the goods, should the same during the time intermediate the levy and sale be removed by the pledgee, or any other person, beyond the reach of the Sheriff. The statute not having clothed him with authority to remove the goods out of the possession of the pledgee, he will not be held accountable for their loss if that loss is not attributable to his own fault or procurement. Neither the statute, nor the security of the officer, or of the execution creditor, require that the property pledged shall be taken out of the possession of the pledgee.
The statute, withholding from the officer the right to remove the property, imposes upon him no responsibility for its safe keeping, or accountability for any waste or loss not properly chargeable to his default.
The statute, authorizing the sale of a pledge, is restrictive of common law right, and must be construed strictly. Nothing that is not expressly provided for, and given thereby, can *Page 38 be taken by intendment or implication. It is entirely clear, from the language of the statute and the note of the revisers accompanying it, that the authority to sell the interest of the pledgor in the property pledged, was not designed to interfere with the possessory right of the pledgee. (See Revisers' note, 3 R.S., page 727, section 117.)
The cases (12 Wend. 134, Scrugham vs. Carter; 23 Wend. 610, Burrall vs. Acker; 24 Wend. 395, Philips vs. Cook; 17 Wend. 58, Randall vs. Cook; 2 Hill 47, Note, Waddell vs. Cook; and 4 Hill 161, Birdseye vs. Ray,) relied on as establishing the right of the Sheriff to levy and remove the property pledged from the custody of the pledgee, have no application in the case of a pledge. In the three first cases the property was copartnership property, taken and sold on execution against one of the partners, and the actions were prosecuted by the partners not parties to the execution. The fourth was the case of a sale of the mortgagor's interest in property in the possession of the mortgagor covered by a chattel mortgage, and the fifth and sixth were cases where the property sold was held by several persons jointly, and as tenants in common, and the interest of all were seized and removed for the debt of one.
In all these cases except the case of the chattel mortgage, the owners had severally the right to the possession of the entire property to the exclusion for the time being of the other owners, and the Sheriff had consequently the same possessory right, by virtue of his execution, to which the individual who was the execution debtor was entitled.
The case under consideration is entirely different. In this case there was no joint ownership, no partnership, nor any ownership in common in the property between the plaintiff, the pledgee, and Willmarth, the pledgor.
It is true that in the case of Bakewell vs. Ellsworth, (6Hill 484,) the Supreme Court say that when the interest of the pledgor in property pledged is levied upon, the Sheriff may take the actual possession of the goods. But on looking into the case it will be seen that the question as to the Sheriff's *Page 39 right to the actual possession of the goods was not raised or at all discussed, and what was said by the Court therefore in this respect, can be regarded only as an obiter dictum, and not as a deliberate adjudication of the point. The section which authorizes the sale of the pledgor's interest, clearly does not authorize the taking of the goods out of the possession of the pledgee, and the Sheriff in removing the goods in this case, acted without authority and became a tort-feasor, and judgment should have been given against him. I am of opinion, therefore, that the judgment of the Supreme Court should be reversed.