Opinion
(August Term, 1847.)
1. Where a forthcoming bond is given for the delivery of property levied on by a constable, it is the duty of the obligors to put the officer in the quiet and peaceable possession of the property at the time and place specified; otherwise their bond will be forfeited.
2. Where a covenant is entered into for the delivery of a variety of articles, the condition is broken if all are not delivered.
APPEAL from CHEROKEE Spring Term, 1846; Pearson, J.
The plaintiff, as a constable of Cherokee County, levied an execution which he had in his hands against William Cunningham upon certain articles, the property of the defendant in the execution, (338) all of which he left in his possession, by virtue of the act of the General Assembly passed in 1827, Rev. Stat., ch. 45, sec. 17, taking from him at the same time a bond for the forthcoming thereof to answer the execution. The present defendant was an obligor in this bond. The articles mentioned in it were four head of horses, two oxen, a set of harness, and two wagons. The delivery was to be at Murphy on 5 August. Cunningham lived at Murphy. On the day appointed two of the horses levied on and included in the bond were delivered, and sold at public auction at the courthouse in Murphy, one bringing 27 and the other $10, prices much below their value. Cunningham then declared that no more of his property should be sold at that rate, and immediately started for his house, Poteet following him. The other two horses were in the stable of Cunningham, and when he got there he found Cunningham at the door, armed with a deadly weapon, and who opposed his efforts to enter. While the quarrel was going on between the parties, the defendant said to the plaintiff, "If you will say the word, I will bring out the property," and during the altercation he repeated the same words. Poteet made no reply to him at either time. The defendant then observed to him, "There lie the wagons; take notice, I deliver them to you," and turned and walked off. The plaintiff immediately after observed to him, "I will hold you bound on your bond." The wagons were in the street opposite to the stable door of Cunningham and in the rear of him and the plaintiff; one of them was old and of no value, the other worth $80; of the latter, the body was lying on the ground. It was not pretended that either the oxen or the harness were delivered. But it was, on behalf of the defendant, urged that the wagons were delivered and the horses in the stable, in (339) consequence of the plaintiff's not saying anything to the defendant's offer to bring them out; and he further contended that he was not bound to deliver all the property, as that which was delivered, to wit, the wagons, was worth $80, a sum more than sufficient to discharge the balance remaining due after deducting the sum of $37 raised by the sale of the two horses. His Honor instructed the jury that there was no delivery of the horses in the stable, nor of the wagons, if they inferred that Cunningham was determined to resist the officer if he attempted to take them in the same manner he had resisted the taking of the two horses; but that there was a clear breach of the bond in the nondelivery of the oxen and the harness. The jury having found a verdict for the plaintiff, the defendant appealed from the judgment thereon.
Edney and J. W. Woodfin for plaintiff.
Francis for defendant.
We concur in the opinion of his Honor in the court below. If there was an error it was one of which the defendant has no right to complain. It appears to us too plain to admit of a doubt that neither the horses in the stable nor the wagons were delivered. Cunningham, the defendant in the execution, stood at the door of the stable, armed with a deadly weapon, and opposed the entrance of the plaintiff. The latter was going beyond the calls of his duty in attempting to go into the stable; he had the bond of the defendant to deliver them to him. Nor was it necessary to tell the defendant to go in and bring them out; it was his duty to do so, if he wished to save his bond. The silence of the plaintiff under the circumstances of the case, when addressed by the defendant, was no discharge of his obligation. Nothing but a positive declaration on the part of the plaintiff, in answer to the inquiry of the defendant, that he would not receive them if brought and tendered could have that effect. With respect to the wagons, the same (340) remarks apply. When the two horses were sold, Cunningham declared, not that no more of his horses should be sold, but that no more of his property should. This declaration necessarily included the wagons, for they had been levied on and are specified in the bond. His arming himself was, according to his declaration, to protect all the property subject to the execution, and the wagons were protected by the same force that protected the horses. The question is not whether the plaintiff would not have been justified in taking them into his possession, but whether the declaration of the defendant under the circumstances did amount to a delivery, so as to redeem his bond. To us it appears, as it did to his Honor who tried the cause, to be a mere mockery so to hold. The delivery which would save the condition of the defendant's bond was such an one as would place the property in the quiet and peaceable possession of the plaintiff — not one which called upon him to fight to get the possession.
But a full answer to the defendant's objection is that the oxen and harness were not delivered. When a covenant is entered into for the delivery of a variety of articles, the covenant is broken if all are not delivered. Thompson v. Gaylord, 3 N.C. 150. The defendant's argument is founded upon the assumption that the defendant has a right to select what part of the property levied on shall be sold. This is a mistake. It is the privilege of the officer to make the selection. For the time being and for the satisfaction of the execution, he is the owner of the property. A court of equity might, under peculiar circumstances, control his discretion in the sale; and after selling as much as satisfies the process in his hands, he has no right nor authority to sell more; but still he has a right to have the whole delivered. It is unnecessary to pursue these views any further. We are of opinion that neither the wagons nor the horses in the stable were delivered, and that there is (341)
PER CURIAM. No error.