#### Wyatt Stanley v. Jeremiah Moynihan.

Trover—Action by Constable—Title under Execution—Levy—Return.

1. Upon the case presented, this court holds that the indorsement of a levy under an execution, which was made upon a separate piece of paper and pasted upon the execution, was sufficient.

2. A levy of an execution upon a crib of com, which is made in the presence of witnesses, by the posting of a notice upon the crib, and by securely nailing up the same, is sufficient.

[Opinion filed December 12, 1892.]

Appeal from the Circuit Court of Henderson County; the Hon. John J. Glenn, Judge, presiding.

*193Messrs. Grier & Stewart and C. A. McLaughlin, for appellant.

Messrs. Kirkpatrick & Alexander, for appellee.

Mr. Justice Cartwright.

Appellee is a constable, and brought this suit in trover against appellant to recover damages for the conversion by appellant of certain cattle and a crib of corn, claimed to have been levied on by appellee, as such.constable, by virtue of an execution in favor of I. F. Harter against S. B. Stanley. On a trial by the court without a jury, there was a finding for appellee as to the corn, and against him as to the cattle; his damages were assessed at $116, being the value of his special interest in the corn, as found by the court, and there was judgment accordingly and for costs. The only question involved in this appeal is as to the sufficiency of appellee’s title to sustain the action. Appellee could only recover on the strength of his own title by showing a levy of the execution, valid and sufficient to invest him with a special property in the corn and a right to its possession. It is contended, on the part of appellant, that there was a failure to prove a valid levy, because such levy, and an inventory of the property levied on, was not properly indorsed on the execution, and that appellee did not take such possession of the corn as would constitute a valid levy as against third persons.

The following facts are established by the evidence': On FTovember 17, 1890, I. F. Harter obtained judgment before a justice of the peace against S. B. Stanley. Execution was issued the same day and delivered to appellee, who indorsed the date of its receipt, and at once made personal service of the writ upon S. B. Stanley. On December 16th, appellee went to the farm where S. B. Stanley lived, and where the crib of corn was situated; and at the crib, in the presence of S. B. Stanley and another person, claimed to.levy on the corn by virtue of the execution, and posted a notice of such levy on the crib. There was other property also levied upon, and on December 27th, appellant, for the purpose of a trial of the *194right of property, gave appellee notice pursuant to the-statute, that he claimed property in the corn and cattle so levied upon. There were two trials of the right of property on January 2d and 12th, respectively, and an appeal was taken to the Circuit Court, where that proceeding was disposed of by agreement, and this suit was afterward begun. In the mean time, appellant had taken the corn and converted it to his own use. At the time of the trial of this cause there was a paper pasted to the execution as an indorsement, reciting as follows: “ I have levied on the following property, to wit: About 1,000 bushels of corn in crib, three cows, three calves and one yearling heifer, two sows, twenty-three shotes, twelve pigs, one self-binder and about fifty bushels of oats in bin. Dated this 16th day of December, 1890. Jeremiah Moynihan, Constable.” There is some uncertainty as to when this paper was pasted to the execution, but the evidence justifies the belief that it was made out soon after the levy, and at the time of the trials of right of property was either folded with the execution as belonging to it, or was pinned to it. There were already two indorsements on the execution showing the receipt of it and the personal service, and the recitals of this paper could be apparently more conveniently made on the separate paper, than upon the narrow remaining space on the execution. It would frequently be impossible to make the indorsement literally on the execution itself on account of lack of space, and the law does not exact a compliance so narrowly technical with its terms. But it is said that Ipie return is too indefinite in failing to state that appellee levied on the corn by virtue of the writ and in failing to describe the corn more particularly. The recital may be referred to the execution to which the paper was annexed. The seizure of the corn by appellee under the execution for its satisfaction constituted the levy, and the indorsement is for the purpose of furnishing evidence of it and of the date, and of the property taken, and for the prevention of fraud. Appellant was not in any way misled, but had actual notice of the levy on this corn under the writ as shown by his notice of claim of property, wherein he *195recited that it was so levied upon by appellee by virtue of the writ. We think that appellee sufficiently and substantially complied with the statute. The remaining contention of appellant is that appellee did not take possession sufficient to enable him to assert a claim against a third person. It is not contended that an officer must take and retain actual manual possession of such property as a crib of corn, but it is claimed that something more should have been done than was done in this case. The levy was made, the notice was posted on the crib, and the crib was tightly nailed up. Shortly after the levy, appellant gave notice for a trial of the right of property, and successive trials were had.

Appellee was not called upon to do anything further with the' corn until the right to it was settled in that proceeding. Before that was done appellant took the corn and made use of it, knowing that it had been levied on as stated in his notice. We do not discover any reason for a reversal of the judgment and it will be affirmed.

Judgment affirmed.