If the seizure of property upon execution and the proceedings leading to a sale thereof are valid as against the debtor, his subsequent assignee in insolvency cannot avoid the levy on the ground that the officer did not retain exclusive possession of the goods.
WALKER, J.
It is conceded that as against the assignor, the debtor, the seizure of the property upon the executions and the subsequent proceedings leading to a sale of it, before the assignment was made, were valid. The officer took exclusive possession of the property, and both he and the debtor understood at the time of the assignment that there had been no abandonment of the levy. If the property had been sold under the levy thus begun, the debtor's interest therein would have been legally disposed of. It would have been bound by the execution lien. The fact that it made a common-law assignment to the plaintiffs for the benefit of its creditors, after the seizure and before the time advertised the sale, did not confer upon the assignees rights in the property not possessed by the assignor. If it was bound by the levy, they were. If it is assumed that the proceedings under the levy were voidable by attaching creditors, because the officer's possession was not sufficiently exclusive, it does not follow that the assignees can avoid the levy for that reason. If they are entitled to an injunction against the levy, it must be because they have a superior title to the property; but it has been determined that the title of a common-law assignee, in the absence of statutory provision, is merely the title of the assignor, and that if the latter had no enforceable right to the property, the former had none. Adams v. Lee, 64 N.H. 421; Peterborough Savings Bank v. Hartshorn, 67 N.H. 156, 158; AEtna Insurance Co. v. Thompson, 68 N.H. 20; Hurlbutt v. Currier, 68 N.H. 94; Thompson v. Esty, 69 N.H. 55, 76; Bur. Ass., s. 349; 4 Cyc. 218. The plaintiffs are not entitled to the relief sought.
Exception overruled.
All concurred.