Dawson v. Daniel.

R. R. Co. v. Ackerman, 33 N. J. Law, 33. But I do not decide this here, as it is unnecessary to the determination of the rights of the parties. The levy was not void because the execution issued prematurely, and now that the motion for a new trial has been overruled, the plaintiff should not, because of a mere irregularity, be deprived of the fruits of his diligence. Nor do I think the levy was abandoned by the marshal. He only stopped at the point to which the proceedings had progressed, when it was arrested by the letter to the clerk. The service of a watchman was not necessary to his title, and his withdrawal was unimportant. The Supreme Court of Tennessee, in the case of Breedlove v. Stump, 3 Yerg. 257-276, has declared the rule for all cases where abandonment of a right is relied on thus: "To constitute an abandonment of a right secured, there must be a clear, unequivocal and decisive act of the party; an act done which shows a determination in the individual not to have a benefit which is designed for him."

The question is argued by counsel on both sides whether this is real or personal property, on the assumption that unless it is real property, a venditioni exponas cannot issue. The writ is used to compel a sale of personalty levied on, as well as a sale of realty. It is true that the sheriff may, in case of a levy on personalty, go on and sell after the return of the fieri facias without a venditioni exponas, while in case of a levy on realty he cannot; but in either case it is proper to issue a venditioni exponas whenever it becomes necessary to enforce a sale. Campbell v. Low, 2 Sneed, 18; Overton v. Perkins, M. & Y., 375; S. C., 10 Yerg. 328; Thompson v. Phillips, 1 Bald. 246-267; Tidd's Pr. 1020; Freem. Ex. Secs. 57-58.

It is therefore unnecessary that I should decide the question argued as to whether the leasehold is real or personal property. Motion granted.

NOTE.-There were two judgments involving the same facts.

Dawson v. Daniel.

In the following case are discussed two or more questions that were passed upon in Dawson v. Daniel by Judge HAMMOND, and perhaps more fully:

STEERS ET AL. V. R. C. DANIEL AND OTHERS.

CIRCUIT COURT-WESTERN DISTRICT OF TENNESEE-JULY 25, 1880.

1. LEVY OF EXECUTION ON LEASEHOLD AND FIXTURES-WHAT IS A GOOD LEVY IN SUCH CASE.-In making a levy on a leasehold, even where it is taken as a chattel interest, the sheriff or marshal cannot oust the tenant in possession, or the execution debtor, without his consent, and he cannot in the nature of the thing, be required to exercise any dominion or control over it, founded on any idea of right to the possession. He should proclaim his levy to those in charge and notify the tenants of it, but even that is not necessary to sustain a levy in such case. Leaseholds are incapable of being levied on in any other manner, and it is everywhere held that where the property is incapable of manual delivery, or is ponderous and immovable, the taking into possession by the sheriff or marshal is impracticable. Such facts must be held to modify that dominion and control which the officer must ordinarily keep up.

2. WATCHMAN-POSSESSION-ABANDONMENT.-No watchman is necessary for the purpose of keeping title in the marshal, either of the leasehold or machinery; nor need the fixtures be separated from the leasehold property, and a failure to have the one, or do the other thing, is no abandonment of the levy.

3. THE QUESTION, WHETHER LEASEHOLDS ARE CHATTELS OR REAL ESTATE.-Leaseholds in Tennessee are to be levied on and sold as real estate, and judgments operate as liens on them. Purchasers are compelled to bring ejectment for the recovery of possession.

4. LEVY BY MARSHAL ON LEASEHOLD AND MACHINERY-SUBSEQUENT LEVY BY SHERIFF OF AN ATTACHMENT-WHO HAS THE TITLE.-After the marshal levies on leasehold and machinery, though he withdraws a watchman, put there by him to protect the property from fire, his title in the property is not affected by the levy of an attachment in the hands of the sheriff, made subsequent to the withdrawal of such watchman.

5. ESTOPPEL. The execution creditor, if the debtor in the meantime conveys to a mortgagee, has a superior title to such mortgage; and if the latter, by his own conduct, secures a letter from the judge an order from the clerk suspending proceedings, he is estopped from setting up an abandonment of the levy; nor can such subsequent mortgagee, know. ing the facts, do so.

6. RES ADJUDICATA-PRACTICE-MOTION.-An application was made for a vend. ex., which was resisted by affidavits, in which it was attempted

Dawson v. Daniel.

to be shown that there was an abandonment of a levy. This was noticed on the merits, and does not prevent the institution of other proceedings by bill.

The principal facts of this case, down to the action of Steers & Co., are fully reported in this volume, pp. 301-310, which the reader should consult.

On the 7th day of August, 1878, Steers & Co. filed their bill in the Chancery Court of Shelby county, in which they sought to attach the leasehold property of Daniel, claiming as they did, a mechanic's lien. The attachment was, by the sheriff, duly levied on the property. The attorney for Steers & Co., before the levy, went to the marshal and asked him whether he intended to sell the property levied on by execution. The marshal replied that he had not determined that question, but added: "I have removed my watchman; you can take the property and do what you please with it." The attorney at once caused the attachment to be levied. The marshal testified that he did not tell the attorney he could do as he pleased with the property, but only this-that he had withdrawn his watchman. He further stated that he did not intend to abandon his levy, but simply to return his writ because of the "order" of Judge BAXTER, and await further instructions. He swore that he had advised with the attorney of the execution creditor when such "order" was received, and was told that that was "unauthorized," and he was warned not to abandon his levy. Besides, this attorney informed him that the leasehold was real estate, and no watchman was necessary and, as he was not willing to say that the expense of keeping such watchman would be paid by his client, advised him to withdraw him.

Daniel, by decree of the State Court, was let into possession as quasi receiver, and authorized to go to work. On November 22, 1878, he executed a deed to H. C. Warrinner, Steers' lawyer, to secure that firm, and at same time another deed to one Jno. J. Freeman to secure his sisters and others, conveying (both deeds) the leasehold, press and fixtures. In this court, at its November term, 1878, the motion theretofore entered in the case of Dawson v. Daniel for a new trial was overruled, and plaintiff Dawson, moved for a vend. ex. to compel the marshal to proceed with his levies. As will be seen by reference to report of that case, supra, the motion was resisted, and it was insisted that the levy was abandoned and that such writ should not issue, first, because the fi. fa. had issued prematurely and was void, and not on the ground that the levies had been abandoned. On February 8, 1879, the court granted the motion.

Steers & Co., on February 12, 1879, removed their bill into this court, and moved to enjoin Dawson from proceeding to sell under the vend. ex. and for a receiver. Freeman, thereupon, filed a cross-bill, in which he resisted the claim to the property on the part of Dawson, on the ground of abandonment of the levy and that the execution was void. The sisters

Dawson v. Daniel.

of Daniel also filed a cross-bill, in which they insisted that Daniel had used their trust money in the purchase of the property, and endeavored to set up a resulting trust in their favor, while Steers & Co. filed a supplemental bill in which they put forth their claims under the Warrinner deed.

And now, all the parties having agreed that the marshal should be, he was accordingly appointed a receiver provisionally. A private sale of the property was effected at the price of $30,000, which the court approved. According to the terms of the decree, $6,000 of this money was deposited in court to await the decision of the contest between Freeman and Daw. son; the balance being paid in discharge of Steers' claim and, in part, that of the sisters. The only question now was, who has the better title to this $6,000--Dawson, the judgment creditor, or Freeman, trustee for the sisters of Daniel?

Gantt & Patterson and Metcalf & Walker (with whom was William S. Flippin) for complainants.

Humes & Poston and Lowry Humes, for defendant Dawson.

HAMMOND, J.-This case is to be decided upon the issues made by Freeman's cross-bill, and stands as if he had enjoined further proceedings upon the venditioni exponas. If a sale had taken place under that writ, Dawson, the execution plaintiff, would be entitled to the money, no matter what kind of a title had been conveyed. Hutchman's Appeal, 27 Pa. St. 209. On the other hand, Freeman can claim nothing under the Steers writ of attachment, and it is immaterial how the case would stand as between Steers and Dawson, or what would have been the result of a controversy between the marshal and the sheriff on the facts of this case. Happily, that controversy is out of the way.

The facts as to the sheriff's levy are only important as throwing light on the question of abandonment by the marshal. Freeman claims that the levies were abandoned at the time the deed of trust was made to him, if not as to the leasehold, certainly as to the machinery, which he claims was personal property, whether the leasehold was or not, and that as to neither did the marshal keep up that dominion and control which the law requires to perfect Dawson's title. It does not lie in the mouth of Daniel, or any one claiming under him with notice, to predicate upon the conduct of the marshal any claim of abandonment. If it was an illegal and unauthorized act of the judge, the clerk, or the marshal, to suspend proceedings, it was a fraud on Dawson for Daniel to procure the suspension, and he can take no advantage of it. If the acts of the judge, the clerk, and the marshal were valid, the "order" did no more than suspend proceedings where it found them. An injunction may have operated to release the levy, but not such a proceeding as that. Bisbee v. Hall, 3 Ohio,

Dawson v. Daniel.

449. Freeman's conveyance was made while the proceedings were pending. The marshal's return disclosed the levy, and precisely how and in what manner it was suspended; and, moreover, Daniel was in possession as a receiver under this Steers bill, to which Dawson was a party. Freeman could not, therefore, be a purchaser without notice, even if he can be treated as a purchaser for value at all, where the trust is to secure. antecedent debts. However the conduct of the marshal might be construed in the case of a subsequent execution creditor, Daniel cannot claim it to be an abandonment, and Freeman occupies no better attitude in filing the bill.

I adhere, however, to the opinion expressed in the case of Dawson v. Daniel,* that, in a strictly legal contest over this title, the facts show no such abandonment as will defeat the title of Dawson, and that without reference to any equitable consideration above mentioned. The question of abandonment is to be tested, not so much by what the marshal did, as by what he was required to do. If, for example, the placing a watchman in charge was unnecessary, his withdrawal cannot be an abandonment. The marshal was evidently trying to hold on to his levies, and all he did must be interpreted in the light of that intention. Yet, if the legal effect of his conduct was an abandonment, his intention to hold on cannot save the levies.

Let us first consider the question without reference to the disputed point whether a leasehold is real estate, and without regard to the "fixtures." Precisely how a sheriff "seizes" or "takes in execution" a term for years, it is difficult to say from anything that has come under my observation. In Pennsylvania, although a leasehold was personal property, and was sold as such, no deed or condemnation being required, as in the sale of lands, it was levied on and sold in the same manner as real estate, the sale and return of the sheriff operating to pass title. Williams v. Dowling, 18 Pa. St. 60; Sowers v. Vie, 14 Pa. St. 99; Dalzell v. Lynch, 4 W. & S. 255.

I take it the same method is proper in Tennessee. Thomas v. Blakemore, 5 Yerg. 113. I understand that to have been only a paper levy, and it was held that neither a deed nor registration was necessary. It is said in Freeman on Executions that, as to personal property, there must be something more than a mere pen-and-ink levy. Section 260. But this cannot apply to leaseholds, for they are incapable of anything else, and it is everywhere held that where the property is incapable of manual delivery, or is ponderous and immovable, these facts must be held to modify that dominion and control which the officer must keep up. Id. §§ 262a, 263, 280.

In England an assignment of the term was necessary to complete the

* Reported in this volume, page 305.