Gaither v. Martin

Eccleston, J., delivered the opinion of this court. Sundry writs of fieri facias against H. H. Gaither, the brother of the appellant, were placed in the hands of the appellee, as sheriff of "Washington county, all returnable to November term 1846. On the 20th of April 1847, under those writs, the sheriff sold certain personal property, as belonging to II. H. Gaither, to the appellant, amounting to the sum of $311.

On account of which the purchaser made two' payments of $50 each, and another of $100. At sundry times he promised to pay the balance, but failing to do so, this suit was instituted to recover the same. In the first bill of exceptions the different writs of fieri facias are set out at length. It is then admitted they were issued on subsisting judgments, and that no returns had been made upon them by the sheriff.

The plaintiff then offered to prove by John D. Ridenour, that in the fall of the year 1846, he was a deputy sheriff under the plaintiff, and as such, called at a room in Hagerstown, occupied as an office by H. H. Gaither and a certain J. A. "Wagoner; that Wagoner alone was in the office at the time. That the witness called for the purpose of levying said executions, and “took a list of the property in the office, and offered to produce and read said list to the jury, as follows:” “We, the undersigned, being duly summoned and sworn by the sheriff of Washington county to appraise the goods and chattels of Henry H. Gaither, taken by virtue of sundry writs of fieri facias, issued out of Washington county court, viz: one at the suit of the Hagerstown Bank against H. H. Gaither; one at the suit of Thomas Ringer against H. H. Gaither, W. H. Fitzhugh and J. O. Wharton; one at the suit of Sarah A. Lyester against H. H. Gaither and M. S. Van ¹⁵⁴ Lear; and one at the suit of Stewart Gaither’s executors against H. H. Gaither, and for fees, do appraise the same in current money as follows, to wit.” Then follows a list of property, and concludes with, “Given under our hands and seals, this 20th day of April 1847,” which is signed and sealed by four appraisers. After this the bill of exceptions goes on to stater “And that he said in the office, that he levied on the property to-satisfy executions in the sheriff’s hands; that he is not sure, but thinks, he mentioned the particular executions, and that he left the property in the office until said Wagoner left it, and when he left it, on the first of April 1847, the witness took the key, locked up the office, with the goods in it, and retained the key until the sale; and that said Henry H. Gaither had been previously informed of said executions and of the intended levy.” In stating the objection to this testimony it is said: “To which evidence so offered for proving a levy the. defendant, by his counsel, objected.

But the court overruled the objection, and admitted the testimony as competent to prove a levy, being of opinion, that even if it were necessary in this case to prove a levy, it might be proved by parol.” The defendant excepted to the admission of the proof and to the opinion of the court. The principle is well settled, that a fi.fa. cannot he levied after the return day. If a levy is made before, the property may be sold after, the return day is passed. If, when making a levy, a list of the property is taken, where no return is made upon the writ, and in a subsequent proceeding the sheriff, being a party, offers proof of the levy having been made, such list must be produced or the loss of it established, so as to let in secondary proof in relation to it.

See Farmers and Drovers Bank, vs. Fordyce, 1 Penn. S. Rep., 457. In Byer vs. Etnyre and Besore, 2 Gill, 150 , there was no evidence of any written list of the property levied upon having been made. The witness in this case stated, that when he made the levy he took a list of the property.

With such evidence before the jury, the court erred in saying, if it were necessary ¹⁵⁵ to prove a levy, it might be proved by parol. The testimony in reference to the list of the properly is very unsatisfactory*. The paper, on its face, purports to have been made on the 20th of Jlpril 1847, when it was signed by the appraisers. And yet the witness produced and offered to read it to the jury, as the list prepared by him at the time of the levy, in the preceding fall.

Whether he was correct in this or not, could only be decided by the jury. If they believed he was mistaken, and the paper offered was not the original one prepared by him, under the instruction of the court that the levy could be proved by parol, they, of course, would have concluded that the production of the original list, or any proof of its contents, after showing its loss, was wholly unnecessary, and regarding such a paper as unimportant, they might rely exclusively upon the parol proof of the witness to establish the levy. If a list was made at the time of the levy, as the sheriff undertook to prove the levy, he could not do that in this case without producing the list. And the court had no right to assume that such a list was not made, in opposition to the statement of the witness that it was. 'Which assumption is necessarily included in their saying the levy could be proved by parol.

Their opinion would be equally erroneous, upon the hypothesis, that the list made at the time of the levy, is the same which was offered in evidence. Because if a levy can be proved by parol, it is when no list of the property is made, or it has been lost, or other property not included in the list has also been levied upon, which was not alleged on the occasion alluded to by the witness, and to which this exception has reference. In the second bill of exceptions it appears the plaintiff offered to prove that H. H. Gaither had said he had given the sheriff the list of property exhibited by the witness, in order that it might not be necessary for the sheriff to go to his dwelling-house to’ make a levy. Which testimony was objected to, because it was not proper to give in evidence the ¹⁵⁶ declarations of a person who might be a witness.

And also' because the evidence was not sufficient to prove a levy upon the property mentioned in said list. If these declarations were admissible, they could only be so because they were made prior to the sale, being then adverse to his interest, and not in conflict with the rights of others. It might be very different after a sale. Considering his title to the property gone by the sale, the restraining influence of interest would no longer exist.

And rights in other parties might intervene, which would be materially affected, by admitting the subsequent declarations of such a party. The admissions of a bankrupt, made before the act of bankruptcy, may'be received to prove the debt of the petitioning creditor, but not his declarations made after, because of the intervening rights of creditors and the danger of fraud. 1 Greenlf. on Ev., sec. 181, and the authorities referred to in note 3. The proof offered does not state when the conversation alluded to took place between the witness and Mr. Gaither, whether before or after the sale. Such testimony, when admissible at all, must be so as one of the exceptions to the general rule of evidence, it was therefore necessary for the party offering it to show, that it possessed all the requisites to bring it within the exception.

Medley vs. Williams, 7 G. & J., 67 . And having failed to prove that the .declarations were made prior to the sale, they ought to have been rejected. The third exception also presents a question as to the admissibility of evidence. The plaintiff offered to prove by John D. Ridenour, that"' the property mentioned in the lists, set out in the first and second bills of exceptions, was advertised for sale in a newspaper published in Hagerstown.

One of said advertisements was produced and appears in the record. All of this evidence was objected to on the part of the defendant, hut the court did not sustain the objection. In this there was no error, if ¡any portion of the testimony was admissible. Budd vs. ¹⁵⁷ Brooke, 3 Gill, 220 .

Without referring to the proof offered in the second bill of exceptions, that which is stated in the first to have been admitted, tended to prove that a levy had been made and a list of the property taken. Whether this was done before the return day of the writ was a question for the jury; the court could not assume that it was or was not. Under such circumstances, the admission of proof that the property alleged to have been levied upon had been advertised for sale, was not erroneous in this case. When a sheriff is about to sell property under an execution, it is his duty to give public notice of the intended sale.

It will avail nothing to say, the subsequent proceedings in the cause show, that the property purchased by the defendant at the sale, is not the same which is mentioned in the first bill of exceptions. We are confined on this question to the third and the two prior exceptions. But if we could look to the subsequent proceedings, we should be strongly inclined to believe, that the books, if not other articles specified in the list of sales, are the same as those mentioned in the first exception. The fourth exception shows, '¡hat on the 20th of April 1847, a sale took place, at which 13.

Gaither, the defendant, attended and purchased a variety of articles, amounting in the whole to the sum of $311, being the same property included and charged in the account filed in the case. That he declared he purchased them for the use of his brother, the said H. H. Gaither. And the .witness Ridenour states, that “the articles were at the time of the sale handed over to the defendant and placed under his control, but were not by him removed from the premises. That he had furnished several lists of the sale to the defendant, who had paid from time to time $200 on it, as credited; that he had often promised to pay the whole and never objected to any want of delivery.” The plaintiff also proved by Lewis Martin, that he, the witness, “called several times on the defendant for payment of the account, and he promised to pay it, the last time being August 29th, 1850.” The defendant then offered to prove by D. H. Smith, that ¹⁵⁸ H. H. Gaither was tenant of a dwelling-house under George A. Bender.

That about the 1st of April 1847, the witness/ acting under a distress warrant from said Bender, levied on all the property in said dwelling,