Palmer v. United States ex rel. Lane

Marshal; Wrongful Levy; Damages, Measure of. 1. The vendor in a bill of sale, in effect a chattel mortgage', reciting that the property will be delivered when the vendee sends for it, caimoi recover damages for a wrongful levy on the same under process directed against a third person, if, when tlie levy was about to be made, the vendee declared his intention of taking immediate possession, since such declaration would constructively terminate the vend- or’s possession, and necessarily his right to recover damages for the disturbance of his possession. 2. Tlie general rule is that damages are to be measured by the actual injury suffered, in the absence of fraud, malice, oppression, or other aggravation. S. 'The damages recoverable from an officer for a wrongful levy upon goods subsequently taken from him by a third person under a paramount title are measured, not by the value of the goods, but by the injuries occasioned the plaintiff by the actual detention by the officer from the date of levy until the goods were taken from him.

Hearing oil an appeal by tlie defendants from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for an alleged wrongful levy upon personal property of plaintiff under a writ of attachment The Court in the opinion stated the facts as follows: This is an appeal from a judgment in the supreme court of the District for the plaintiff, Jessie C. Lane, appellee here, in an action for trespass de bonis aspoHatis for an alleged wrongful levy by Auliclc Palmer, the marshal of the District, one of the defendants below, upon personal property of the beneficial plaintiff, under a writ of attachment before judgment, by one Chamberlaine, against plaintiff’s husband. There appears to be no dispute that the writ of attachment under which the marshal acted was regular in form. Armed with the writ, the marshal, by his deputy, who was accompanied by the plaintiff in the attachment proceeding, on September 13, 1909, went to the residence of the plaintiff herein and her husband, where was located the property to be levied upon, consist^ ing of pictures, paintings, and rugs. Mr. and Mrs. Lane (plaintiff herein and her husband), a Mr. LL W. Yan Senden, and another, were present. According to the evidence for the plaintiff the deputy was informed by Mr. and Mrs. Lane that the property belonged to Mrs. Lane, and that Mr. Yan Senden stated: “The pictures and rugs are the property of Mrs. Lane, and I have a bill of sale upon them, and if you take them, you take them at your peril.”. According to the evidence for the defendants, Mr. Yan Senden claimed that the property was his, and “that he was entitled thereto and to the possession thereof by virtue of the said bill of sale,” and that the deputy would take said property at the marshal’s peril. Thereupon the deputy announced that he must obey the instructions of his office, and proceeded to take down the pictures from the Avails, called in two appraisers, and had the rugs and pictures appraised, the rugs rolled up, and some of them taken out on the back porch.. It Avas then agreed by the plaintiff in the attachment proceedings, Mr. Ohamberlaine, and Mr. Lane, with the consent of the deputy, that the goods should not be removed from the premises that night, but should remain in the custody of Mr. Lane until the' following morning, when a Avatehman might be put in charge of them. The folloAving morning, September 11, 1909, a watchman was put in charge of said property by the marshal, and ho remained in charge thereof until the 18th of September, when the property was seized by the coroner of the District on a writ of replevin in a suit by Mr. Van Senden, and, on the 23d day of September, without having theretofore been removed from the premises, delivered to Mr. Van Senden, in whose possession the property has since remained. The bill of sale, which was duly recorded, to Mr. Van Senden, was in consideration of the payment by him to Mrs. Lane of $2,100. It recites that the property covered by it “will be delivered to said 3L W. Van Senden when he sends for same.” While it was in form an absolute bill of sale, according to the evidence it was in effect a chattel mortgage. There was no evidence of oppression or other aggravation on the part of the deputy in making the levy, nor is there any dispute as to the right of Mr. Van Senden to the attached property. One of the pleas hied by the defendants was the following: “5. After the seizure and taking by the defendant, Aulick Palmer, on, to wit, the 13th day of September, a. d. 1909, of the goods, chattels, and personal property in the declaration mentioned, the same was thereafter, under a writ of replevin duly issued at the suit of one Herman W. Van Senden against the defendant, Aulick Palmer, in the certain action at law No. 51,914 on the dockets of the supreme court of the District of Columbia, and on, to wit, the 18th day of September, a. n. 1909, taken from the custody and possession of tbe said defendant by the coroner of the District of Columbia, and since tbe said last-mentioned day and date none of tbe said goods, chattels, and personal property has been in the possession, custody, or control of the said defendant; wherefore, since the said last-mentioned day and date the said defendant has not deprived the said Jessie C. Lane of any part of the said goods, chattels, and personal property, or the possession thereof; ■ and this the defendants are ready to verify.” To this plea plaintiff interposed a demurrer averring: “1st. That the marshal, having taken the property from the possession, of the use plaintiff, cannot plead in defense thereto that someone else took the property from him, or the right of a third party to the goods. '2d. That said plea does not present a material issue.” The demurrer was sustained. Over the objection and exception of the defendants, the court, at the request of the plaintiff, instructed the jury that if they believed from the evidence that, at the time of the seizure of the goods mentioned in the declaration, such goods were in the possession of the plaintiff, their verdict must be for the plaintiff, unless they believed that the goods were actually owned by Mr. Lane. The defendants requested the court to charge the jury that if they believed from the testimony that, at the time of the attachment and prior to the actual levy of the same, Mr. Van Senden was present and claimed the property by virtue- of his bill of sale, such an act on his part constituted the taking possession by him of the property, so that it was not in the possession of the beneficial plaintiff, and hence that she could not recover. A further prayer, based upon said fifth plea, was requested by the defendants to the effect that if the jury should find t....c, after the levy upon the property by the marshal, the same was seized and taken from him by the coroner of the District upon a writ of replevin, and that thereafter the property was not in the custody and control of the said defendants, no damages should be awarded to the beneficial plaintiff after such seizure by the coroner. Each of these prayers was refused, and an exception noted. The jury returned a verdict for the plaintiff in the sum of $3,000. 1. The attempted levy was upon the property, and against the right, of Van Senden, and not of the plaintiff, (a) Actual possession of the property by Van Senden was not necessary. The bill of sale was duly executed, acknowledged, and recorded,-and is, as between the parties thereto, and those having notice thereof, valid and effective to pass thé title, to the chattels. therein described, even though the vendor remain in possession thereof. Colbert v. Baetzer, 4 App. D. C. 416; Eastern Trust, etc. Co. v. Willis, 6 App. D. C. 383; Hume v. Biggs, 12 App. 1). C. 366; United States v. Groome, 13 App. D. C. 470. The recording of a chattel mortgage stands as notice to all the world of the existence of the lien thereby created as it stood when the mortgage was executed, and that the mortgagee would have the right to take possession thereunder; and when taken, the possession relates back to the time of the execmtion of the mortgage. Thompson v. Fairbanks, 196 U. S. 516, 521, 524. But whether duly recorded or not, notice of the bill of sale and the claim thereunder to the marshal was alone sufficient for the assertion of Van Senden’s right in the premises. A sheriff who sells property upon which there is a mortgage, and of which he has notice, is liable to the mortgagee for the value of the same. Gilbert v. National Cash Beg. Go. 67 111. .606; Stale v. White, 70 Mo. App. 1; Worthington v. Hanna, .23 Mich. 53; Hudlrnantel v. Vinton, 112 Mich. 47. It is sufficient if there be such a title as draws after it a constructive possession. Gauche v. Mayer, 27 111. 133. After demand by the owner upon a sheriff for property seized by him. under a writ against another, the sheriff is liable to the owner. Armstrong v. Bell, 102 By. 149. The "‘owner'" was a mortgagee living, not in the city where the levy wras made, but in another city, where the mortgage was recorded; and the notice held by the court sufficient to have arrested the levy was a simple verbal statement to the sheriff by the mortgagor of the fact of the mortgage. And it is not necessary to a mortgagee’s demand upon the sheriff to arrest a levy, or to his right thereafter to sue the sheriff, for a conversion, that the mortgagee be at the time entitled to possession. Wells v. Chapman, 59 Iowa, 658; Scaling v. Bank, 87 S. W. 715; Taylor v. Seymour, 6 Cal. 512; Killey v. Seamnell, 3 2 Cal. 73; Fuller Co. v. McDade, 313 Cal. 36; McGraw v. Bishop, 85 Micb. 72; Anderson v. Cook, 100 Mich. 623 ; Benton v. McCord, 96 Ga. 393; Snyder v. IHM, 32 By. 204. If, after notice of claim of a mortgagee -to a sheriff about to levy, the sheriff proceeds with the levy, the mortgagee may replevy the property seized. Coleman v. Reel, 75'Iowa, 304; Van Matter v. Lucas, 64 N. J. L..182. A sheriff making a seizure of property after he has been informed that the title is not in the debtor, but in some third person, is bound, with the seizing creditor, to indemnify such third person in damages. Aticinson v. Atkinson, 15 La. Ann. 491. A sheriff refusing to recognize a vendor’s right of stoppage in transitu, and thereafter selling the goods which are subject to that right, is answerable for their value to the vendor. Harris v. Tenney, 85 Tex. 254. It is immaterial whether the notice of claim be given to the officer before or after the writ is placed in his hands. Stuart v. Broivn, 60 Iowa, 275. If a sheriff takes the property of one to pay the debt of another, whether he has knowledge of defect of title or not, he is liable to the real owner; and if he sells the property, he is liable to the purchaser for a return of the purchase money, if the property is recovered by the owner. Harrison v. Shanks, 13 Hush, 620. (b) Assuming actual possession by Van Senden of the property in question to have been necessary at the time of the attempted levy, the circumstances constituted such possession, and made the levy one in effect upon his property and not upon that of the plaintiff. McLoud v. Wakefield, 70 Vt. 558; Smith v. Judge, 53 Mich. 560; Tannehill v. Tuttle, 3 Mich. 104; Williams v. Dobson, 28 Cal. 110; Dunlop v. Steele, 80 Ala. 424; See Udell y. Slocum, 56 111. App. 216 ; Merñtt v. Miller, 13 Vt. 416; Sloan v. Surety Co. 77 N. Y. Supp. 561; Smith v. Smalley, 46 N. Y. Supp. 277, and cases cited. See Beaman v. Bank, 35 Colo. 373. 2. It may not be doubted that the defendants might properly assert and show the right of Van Senden in the pr< mises. The defendants were sued for the alleged wrongful taking of the property of the plaintiff. Any fact showing 'that thb property taken was not that of the plaintiff is good in defense of the action. Cresweü v. Smith, 61 S. 0. 575 ; Mansfield v. Sumner, 3 Met. 91. 3. The defendants might properly rely upon the taking of the property by replevin from the marshal as absolving them from any subsequent liability in respect thereof. Phoenix Co. v. Arbuckle, 52 111. App. 33; Kreher v. Mason, 20 Mo. App. 29; Tun Mater v. Lucas, supra; Mansfield v. Sumner, supra; Woodward v. McDonald, 116 (la. 718; Tagert v. Hill, 1 N. C. 277 (Conference Reports, 161, 2d ed. 283); J. B. Sanarens & Co. v. True, 22 La. Ann. 183; Lowenberg v. Jeffries, 71 Fed. 385; Governor v. Gibson, 14 Ala. 326. 1. There can be no longer any doubt that the sureties upon the bond of a United States marshal are liable, as well as tbe principal, upon his official bond, for taking the goods of one person under a writ commanding him to take those of another. Lammon v. Feusier, 111 U. S. 17; Buck v. Oolbath, 3 Wall. 231; Snively v. Fahnestock, 18 Md. 391. 2. In cases of attachment before judgment, where the marshal (sheriff) takes goods and is sued for their illegal seizure, he must show, where the foundation of the attachment proceeding is the fraud of the defendant in that proceeding, that there was a debt due by the defendant in the attachment proceedings to the plaintiff therein, before he will he heard in defense of his seizure of the goods, and, if he has seized the goods claimed by the plaintiff in the case for damages against him, he will not be heard to say that the goods belong to a third party, or, in other words, to set up the jus tertii, unless all the proceedings in the attachment case, including the existence of the debt itself, are established by him to be regular. Damon v. Bryant, 2 Pick, 111; 25 Ene. p. 704, 2d ed.; Danville v. Mayhall, 128 Cal. 617; Sears v. Lyden, 49 Pae. 125; Pease v. Anderson, 44 111. 216; Mills v. Talbott, 63 Kan. 14; Homberger v. Brandenberg, 35 Minn.- 401; Howard v. Mander.field, 51 Minn. 337; Hines v. Chambers, 29 Minn. 7; Ford v. McMaster, 6 Mont. 240; Hakason y. Brodke, 36 Neb. 42; Winshell v. McKinzie, 35 Neb. 813; Keys v. Grannis, 3 Nev. 548; Van Etten v. Hurst, 6 Hill, 311; Noble v. Holmes, 5 Hill, 194; Darsen v. Acker, 23 Wend. 480; Smith v. Holt, 37 App. L)iv. 24; Bugbee v. Lorn-back, 88 Wis. 271; Bogert v. Phelps, 14 Wis. 8S; Lammon v. Feusier, 111 H. S. 17; United States y. Hine, 3 McArtli, 27; Wanamaker y. Bowes, 36 Md. 1.