CHAPTER V. PROPERTY SUBJECT TO EXECUTION. -- Personal Property. What is Property. - General Rule of Property liable. - Personal Property liable in Preference to Real Estate. What is Personal Property. - Personal Property liable.-Property fraudulently conveyed.—Pawned, Pledged, or Mortgaged Property. - When Mortgages are fraudulent as to Creditors. When and where not liable. Choses in Action, what are, when not liable, when and where liable. Money, when it is, and is not liable. Emblements. taken. for Years. Crops and Fixtures, what are, are not, when and how · Movable or Trade Fixtures. Terms or Estates · Personal Property not liable to Execution. § 113. ALL the property of a defendant, or against whom judgment is rendered, or against whom the execution issues, is, as a general rule, liable to seizure and sale for the payment or satisfaction of such judgment or execution, except as shown in the preceding chapter, and such as will be shown to be exceptions to this general rule. Property includes both real and personal; includes lands and tenements, hereditaments and commodities, the value of which may be measured in money. "Property is the highest right a man can have to anything being used for that right which one hath in goods and chattels, lands and tenements, which in no way depends upon another man's courtesy."1 Generally, the right to seize and sell property on execution is confined to the seizure and 1 Stief v. Hart, 1 N. Y. 20. Westervelt v. Gregg, 12 N. Y. 202. People v. Mayor, 9 Barb. 535. Jackson v. Housel, 17 Johns. 281. Lawrence v. Lawrence, 1 Edw. Ch. 241. Tenbroeck v. Sloo, 13 How. Fr. 28. Law of Burial, 4 Brad. 516. sale of such property as an owner himself can sell, or that can be sold, if there be no law to the contrary. Whatever one cannot sell himself cannot on execution be legally sold for his debts.2 Property or funds cannot be vested by will or any other instrument in a trustee without being subject to the debts of the cestui qui trust. In Louisiana a plaintiff's property is liable notwithstanding he recovers a judgment.4 § 114. PERSONAL PROPERTY THE PRIMARY FUND OUT OF WHICH SATISFACTION IS TO BE OBTAINED. In the Roman law, the chattels were first to be resorted to, and the land was seized and eventually sold, provided the movables of the debtor were found insufficient to satisfy the debt; and this has been the universal rule in all countries. Personal property being primarily liable for the satisfaction of debts, it is, as a general rule, the duty of the officer having an execution in his hands to search for personal property sufficient to satisfy the execution; and in case there is no personal property, or not enough to satisfy the execution, he must, in accordance with the command of the writ, cause the amount to be made out of the real estate of the party against whom the writ issues, at the time of the rendition of judgment. Many statutes require that the personal property of the debtor be first exhausted before proceeding to subject his real estate to the satisfaction of an execution, and require the officer to make an entry or indorsement on the execution, of "no property," and where required is necessary before subjecting real estate. It is error to take 'Francis v. Nash, Cas. T. Hard. 58. Coombs v. Jordan, 3 Bland Ch. 39. Carpenter's Case, 3 Bland Ch. 640. * French v. Mehan, 56 Penn. 286. McCurdy v. Canning, 64 Penn. 39. Doe v. Praratt, 5 T. R. 652. Robb v. Beaver, 8 W. & S. 111. Gentry v. Wagstaff, 3 Dev. 270. Boling v. Strickland, Ga. Decis. (Part 2) 170. Daniel v. Justices Dudley (Ga.) 2. Neilson v. Neilson, 5 Barb. 565. Simpson v. Hiatt, 13 Ired. 470. Hassell v. Southern B'k, 2 Head. 381. Carmichael v. Strawn, 27 Ga. 341. Koehler v. Ball, 3 Kans. 173. Gore v. Brazier, 3 Mass. 523. Ewing v. Hatfield, 17 Ind. 513. Hall Samuel v. Salter, 3 Met. (Ky.) v. Schultz, 4 Johns. 239. Wilson v. 250. Bantz v. Price, 14 La. 191. Clarke Thacher real estate without first making such indorsement. The reason of this provision is, that the personal property of such debtor may be first applied in payment of the debt, and if there is none, to place proof of that fact upon the record, to satisfy the court of the regularity of the proceedings, and, in case of confirmation of a sale, that the court may act correctly in the matter. Unless the defendant otherwise requests, the officer is bound to apply the personal property first.1 But, by consent of both parties, real estate may be taken in the first instance.2 In Kentucky an affidavit is required to be filed, before a judgment for the sale of real estate can be rendered. In Connecticut, it would seem, notwithstanding the statute, that real estate may be attached, though there be personal property sufficient to satisfy the demand. Where the officer makes a demand of money and chattels to satisfy an execution, and none is offered, a levy on real estate will be good, though the debtor owns and possesses personal property enough at the time to satisfy the execution, though the statute makes personal property the primary fund.5 In Illinois, personal property, and the land on which the debtor resides, are to be last taken on execution, on the ground that the domestic and farming goods and chattels, and the ground occupied and settled, are vastly more necessary to him than wild lands, and notice to the debtor is given that real property may be taken before personal property. In North Carolina the debtor must show the officer personal property; if he does not, and real property is taken, without any knowledge of the officer as to there being any personal property, he will not be liable. But if a debtor's Dietrich 2 Smith v. Randall, 6 Cal. 47. Springer v. Johnson, 3 Harring. 515. v. Powell, 6 Wheat. 118. Coe v. (Ia.) 306. Maybury v. Jones, 4 Wickham, 33 Conn. 389. Yeates, 21. v. State Bank, 6 Ind. 439. v. Reynolds, 7 Ind. 622. v. Whitney, 14 Mass. 88. Webb, Watts. 414. Fleming, 2 Dall. 94. Den v. Hunt, 6 Halst. I. Daniels v. Ellison, 3 N. H. 279. Cavender v. Smith, 1 Clarke 3 Jackson v. McElroy, 2 Bush. 132. 7 Sloan v. Stanley, 11 Ired. 627. personal property is so encumbered with mortgages that it would not sell for anything, the officer need not take it first;1 or, if by agreement with the debtor it is returned to him after being taken.2 Or, where real and personal property is taken under several executions, and the personal estate sells for enough to pay the principal and interest, leaving the costs unpaid, the real estate may be sold to pay the balance due.3 Or, where the land alone is sold, the purchaser gets a good title. An indorsement on the execution by the officer of "No property," or "No goods or chattels of defendant found in my county," is sufficiently certain and valid, and warrants the taking of real estate for the purpose of satisfying the execution." § 115. WHAT IS PERSONAL PROPERTY. — “It usually consists of things temporal and movable, and includes all subjects not of a freehold nature or descendible to the heirs at law. It includes not only everything movable and tangible which can be the subject of property, but may include things quasi movable, as tenants' fixtures, and quasi tangible, as choses in action. It is the right or interest which one has in things personal; the right or interest less than a freehold which one has in realty, or any right or interest which one has in things. movable. Personal property is to be distinguished from things personal. There may be, for example, a personal estate in realty, as chattels real; but the only property one can have in things personal is personal property. The essential idea of personal property is that of property in a thing movable, or separable from the realty; or of perishability or possibility of brief duration of interest, as compared with the owner's life, in a thing real, without any action on the part of the owner." It embraces not only goods, chattels, coins, bills, and evidences of debt, but, in the strict and more appropriate legal definition, signifies the right and interest of the owner in these articles." 'Detrick v. State Bank, 6 Ind. 439. 2 Jones v. Lusk, 2 Met. (Ky.) 356. Doe v. Ingersoll, 19 Miss. 249 'Dowdell v. Neal, 10 Ga. 148. Vilas v. Reynolds, 6 Wis. 214. Trotter v. Nelson, 1 Swan, 7. Carmichael v. Strawn, 27 Ga. 341. Stief v. Hart, 1 N. Y. 24. Morrison v. Semple, 6 Binn. 94. Jackson v. Housel, 17 Johns. 283. Walls v. Langfard, 14 East. 379. It includes a judgment. In the New England states, spi-ituous liquors.2 $116. PERSONAL PROPERTY SUBJECT TO SEIZURE AND SALE UPON EXECUTION. At common law, everything that is a chattel belonging to the party against whom the execution issues, except wearing apparel, was liable to be taken and sold; also leases or terms for years, which are chattels real.3 Growing grain which went to the executor as personalty; and all such fixtures as might be removed by the tenant if he was the defendant in the execution; everything of a personal nature belonging to the debtor in the execution may be levied on and sold, except personal things of which the owner has not possession, but merely a right of action for their possession; or rights which cannot be enforced without action, termed choses in action. Property exempt by law from sale on execution, and certain fixtures which are so annexed to real estate as to partake of and become real property, including bank-notes and money. The latter is not liable to sale on execution. Generally, the right to seize and sell personal property on execution is coextensive only with the power to take and deliver possession. Whatever an owner himself may sell may be taken on execution, if there is no law to the contrary. Possession is presumptive of ownership. An officer failing to make the money on an execution must show that the property did not belong to the debtor. Where goods are bound from the teste of a writ, property sold by a debtor after such teste. 1 Adams v. Hackett, 7 Cal. 187. Crandall v. Blen, 13 Cal. 15. McKeon v. Bisbee, 9 Cal. 142. Davis v. Mitchell, 34 Cal. 81. 6 Flower v. Nuncaster, 2 La. 615. * State v. Johnson, 33 N. H. 441. 3 People v. Haskins, 7 Wend. 466. People v. Westervelt, 17 Wend. 674. 210. S. C. 20 Wend. 416. Merry v. Hal- Ch. 39. lett, 2 Cow. 497. Vredenburgh v. Ired. 43. Morris, 1 Johns. 223. Ryall v. Rolle, Ch. 640. 1 Atk. 165. Gordon v. Harper, 7 T. R. II. * Leavitt v. Smith, 7 Ala. 175. Farlee v. Lee, 4 Dev. & B. First v. Miller, 4 Bibb. 311. 169. |