Bickerstaff v. Doub

         The delivery of the property to Turney and Hunter, under the contract to sell, was an absolute sale. The provision for the vendor to retain the title only, gave him a lien for the purchase money, or a right to rescind the contract.

         The plaintiffs, by virtue of the contract, had the right of possession as against the vendor and every body else.

         The plaintiffs were to make payment in wood. No time was limited in which they should do so. As fast as it was drawn to the landing it was to be applied towards the payment.

         The wood, after delivery, was the subject of levy. As long as the vendor did not complain of nonpayment, no one else had the right to do so.

         The contract itself was the subject of attachment.

         JUDGES: Field, C. J. delivered the opinion of the Court. Baldwin, J. concurring.

         OPINION

          FIELD, Judge

         It is well settled that an execution is sufficient justification to the Sheriff for the seizure of the property of the debtor, and it is immaterial whether the property be in the actual possession of the debtor, or in the possession of an agent or parties holding it for his benefit. But if the property be in the possession of a stranger to the writ, claiming it as his own by virtue of a transfer to him from the debtor, which would prevent the latter himself from retaking the possession, the officer must produce not only the writ, but the judgment which authorizes its issuance. A sale of property by a debtor, even if void as against creditors, is good as between himself and his vendee, and all the world except his creditors. And such sale cannot be attacked by a creditor merely from the fact that he is a creditor, but only when he has a judgment establishing his debt, and an execution issued thereon, or has some process regularly issued, as in the case of attachment, authorizing a seizure of the property. (See Thornburgh v. Hand , 7 Cal. 554.)

         In the present case the property was admitted to be in the possession of the plaintiffs, and they are strangers to the execution. The defendant did not produce the judgment, but attempted to attack the title of the plaintiffs by showing that, by the contract between the debtor and them, they were not to have the title to the oxen and wagon until the wood was drawn and delivered. The contract, admitting it to be as the defendant alleges, was a valid one in itself. The oxen and wagon were delivered to the plaintiffs, as with them the plaintiffs were to draw the wood, the delivery of which was to constitute the consideration of the sale. The performance of the contract was entered upon by the plaintiffs, and until a neglect or refusal to complete the performance, the debtor could not have reclaimed the property, nor could the Sheriff until then have seized it under process against the debtor. Unless the transfer were made to hinder, delay or defraud creditors, the Sheriff could not question its validity, and not even then without first producing the judgment under which the execution he held was issued.

         Judgment affirmed.