There is no ground for this appeal. Notwithstanding the levy, the judgment debtor remained owner of the property and could convey the title subject only to the lien created by the execution. And this was so although the sheriff levied on all the property in question, as the evidence tends to show he did. It is true the assignee is not a purchaser for value within the meaning of the statute which protects the title of a bona fide purchase made before actual levy, (2 R.S., 365, § 17), but he nevertheless acquired a good title subject to the payment of the debt due the execution creditor, or to the sheriff's lien for the collection of the debt, and one which, until impeached for fraud, is *Page 22 good against all persons. (Grant v. Chapman, 38 N.Y., 293.) Moreover, as the property was in the sheriff's hands and not in the possession of the debtor, the transaction was not within the purview of the statute (2 R.S., p. 136, § 5) which requires an immediate delivery of goods sold, for that applies only to a sale made by a vendor of goods, etc., in his possession or under his control. It is contended, however, that as the attachment came to the sheriff's hands after the levy on the execution and before the sale, there was a constructive levy notwithstanding the assignment, and this position is supposed to be fortified bySlade v. Van Vechten (11 Paige, 21). But it is not. The executions therein considered were all issued prior to the transfer, and the court held that the lien acquired by them, although no levy was made in fact until after the assignment, was superior to the assignee's title. This rule is well settled,Warner v. Paine (3 Barb. Ch'y., 630); Birdseye v. Ray (4 Hill, 158); Ray v. Birdseye (5 Denio, 619), but does not aid the plaintiff, for the facts on which it rest do not fit his case. There is indeed, evidence that the sheriff assumed to levy the attachment, and it is therefore contended by the appellant that he should have kept the levy good and not surrendered until a jury had passed upon the claimant's title, as is provided by section 10, 2 Revised Statutes, p. 4. Had the defendant followed this statute he would have been protected against this action. By not doing so, he assumed the burden of showing, when sued, that the property was not subject to the attachment, Denton v.Livingston (9 J.R., 96); Magne v. Seymour (5 Wend., 309) for in that case he had a right to release it.
It follows from the conclusion reached upon the proposition first considered, that the facts existed on which the defense might rest, and as they were undisputed, the trial court properly dismissed the complaint.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 23