Smith v. Hill , 22 Barb. 656 ( 1856 )

By the Court, C. L. Allen, P. J.

The plaintiff, by the sale, showed himself in the actual or constructive possession of the property in question, and that was sufficient to entitle him to maintain the action, as against the defendant. (8 John. 432. 11 id. 285. 12 Wend. 39.) It is objected that no judgment was shown or proved, on which the executions, or either of them, issued; or when a levy was made; or that the property was over advertised for sale. None of these objections were taken on the trial, where, if taken, they might have been obviated. On the contrary, it appears to have been then assumed that the executions were valid, and founded on good judgments; and the court, in the absence of all such objections, must so hold. (See 21 Wend. 305 ; 10 id. 167.) The sheriff testified, without objection, that he sold the stove and pipe on the plaintiff’s execution, and that the plaintiff bid it off. The sale, it is true, was forbidden, but upon the sole ground that the stove was exempt property; thus virtually admitting the execution and sale to have been, in other respects, legal and valid. Besides, it was proved that the defendant himself said, before removing the property, that he should not have done it, but he had spoken to the plaintiff, two or three times, about it, and could get no answer. This was an acknowledgment, as the jury had a right to infer, of possession in the plaintiff. (14 John. 126.) And the defendant was not in a condition to avail himself of any irregularities on the part of the sheriff, in making the sale. (See 19 Wend. 361.) The same remarks are applicable to the objection that the execution produced was not issued until the 16th of September, 1851, and that therefore no sale under it could have taken place in June previous. Some mistake undoubtedly existed in relation to the execution, but it was not required to be explained on the trial, as it undoubtedly might have been, if the attention of the party or the court had been called to it. The sale and execution both seem to have been taken for granted as valid, as already observed, and the defense placed upon the particular grounds taken as specified in the return. The defendant is not at liberty to change his ground, and rely upon objections which, if taken at the proper time, might have been obviated. He took a course ou the trial calculated to mislead the justice if he intended to rely upon the ground which he now presents; and the justice might well have supposed that none, other than those urged before him, were intended to be raised. (Potter v. Deyo, 19 Wend. 361, 364.) Whether the stove and pipe were exempt from execution or not, was not a question proper to be agitated on the trial. That was a claim personal to the defendant in the execution, Samuel W. Hill; and he only could avail himself of the privilege. (Earl v. Camp, 16 Wend. 571. Mickles v. Tousley, 1 Cowen, 114.)

But it is urged that the defendant was the assignee of Samuel W. Hill, and therefore could claim the stove and pipe in that capacity, inasmuch as the'assignment did not except property exempt from execution. It may be remarked, in answer to this argument, 1. That no such defense was set up in the answer; and 2. That the defendant stood by at the time of the sale, and made no claim to the property as assignee, admitting that the assignment had been made previously to that time, He was selling Samuel’s property, at the vei'y time, under his own execution, and only declined to sell the stove and pipe because it was exempt property, and distinctly stated his objection to the sale, on that ground alone. He cannot now be permitted to change his ground,' as before shown. (See 1 Comst. 496; 3 Hill, 215; 6 id. 534 to 537.) But it did not appear that the assignment was made before the levy, and the jury seems to have found so, as a matter of fact. (See 4 Denio, 171; 2 R. S, 317, § 5; 4 Comst. 581 to 599.) It is said there is no proof of levy. The presumption is that the sheriff did his duty, and levied before the sale, and so the defendant admitted on the trial, by making no objection. Ho possession whatever was proved to have been taken, under the assignment—not even a delivery of it or the property; and in my judgment it formed no defense to the action, even if properly admitted in evidence. (6 Wend, 581, and various other cases.)

But it is contended that the justice erred in allowing the witness to testify to the directions of the plaintiff to the sheriff, in the presence of the defendant, to sell the property in question, It is believed that this testimony was properly received. If was not giving in evidence the declarations of the plaintiff in his own favor. It was a'direction (accompanied with an act) at the time of the sale. The defendant had declined to sell the stove and pipe on his execution. The plaintiff then turned to the sheriff, and directed him to sell under his execution, which was probably younger than the defendant’s, and the sheriff did so; the defendant being all the time present, and knowing, therefore, that the plaintiff purchased the property at that time and under what circumstances, and making no objection, at the time, of claim, either under the assignment or under his own execution, but waiving all claims, and estopping himself, thereby, from making them afterwards. The testimony was, in my judgment, eminently proper. The sheriff was acting under the directions of both parties, who had executions in his hands ; and what was said by either, especially in the presence of the other, was proper evidence.

[Clinton General Term, September 9, 1856.

Another ground of defense is, that the justice erred in receiving the evidence of the value of the property. I think the witness brought himself within the rule which authorizes a witness to fix a value upon property, and that the evidence was properly received. (5 Denio, 84. 23 Wend. 353.)

On the whole, the questions were principally of fact, and the finding of the jury, on testimony submitted on both sides, should be conclusive and prevail. (18 Wend. 141. 5 Barb. 289. 15 Wend. 490.)

I can perceive no good reason for disturbing the verdict, and the judgment of the county court must be reversed, and that of the justice affirmed, with costs.

C, L, Allen, Paige, James and Rosekrans, Justices.)