{
  "id": 11275155,
  "name": "JACOB BLEVINS vs. WILLIAM BAKER & AL.",
  "name_abbreviation": "Blevins v. Baker",
  "decision_date": "1850-08",
  "docket_number": "",
  "first_page": "291",
  "last_page": "294",
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    {
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      "cite": "33 N.C. 291"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "3 Dev. 50",
      "category": "reporters:state",
      "reporter": "Dev.",
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        8684157
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      "cite": "4 Dev. & Bat. 160",
      "category": "reporters:state",
      "reporter": "Dev. & Bat.",
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      "cite": "3 Dev. 50",
      "category": "reporters:state",
      "reporter": "Dev.",
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        8684157
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  "last_updated": "2023-07-14T20:44:04.070595+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JACOB BLEVINS vs. WILLIAM BAKER & AL."
    ],
    "opinions": [
      {
        "text": ".Pearson, J.\nThis was trover for 45 bushels of salt, a wagon and five horses, and a tent cloth, 5 pair of wagon gear, an%axe, bucket, one coat and log chain. The plaintiff and one Peppers were tenants in common of the salt, which they had in a wagon. The wagon was stopped at the store of the defendant, Baker, the hind gate taken off and several sacks of salt delivered to Baker. At this time the defendant, Hunt, who, as constable, held several executions against Peppers in favor of Baker, was in the act of seising and levying on the 45 bushels of salt. The plaintiff and Peppers attempted to prevent his doing so, by putting on the gate of the wagon and starting the .horses ; whereupon blunt caught hold of the horses and kept them from moving, and, after much altercation, the plaintiff and Peppers went off and left the salt, wagon, horses and every thing appertaining thereto. The defendants took out the salt and put it in Baker\u2019s store house, and1 weighed off one half, as the share of Peppers, which Hunt afterwards sold under his executions. The wagon belonged to Baker, he having hired it to the plaintiff to make the trip to the salt works ; the horses belonged te persons in the neighborhood, who had hired them to the plaintiff. Baker kept his wagon, took the gear off the horses and turned them loose and they went to their respective owners. The tent cloth, gear, axe, bucket, coat,. &e., belonged to the plaintiff. These articles the defendants did not remove or use or claim in any way, They remained where the plaintiff had left them; he could, without opposition, have taken them away at any time. It was not alleged, that the plaintiff wished or offered to resume the use of the wagon and horses after the salt had been taken out.\nThe Court charged \u201cthat the defendants had no right to take possession, at all, of the salt, in the way they had done, by virtue of a levy on Peppers\u2019 interest and the \u2022plaintiff had aright to sustain this action for such taking.\u201d On the second point, the Court charged \u201cthat the plaintiff, having a general right to and possession of the tent cloth and gear and other articles and a special right to and possession of the wagon and horses, had a right to recover, in this action, the actual damages which he had suffered by the interference of the defendants.\u201d\nTo this the defendants except. There was judgment for the plaintiff and an appeal.\nWe think, there is error in the charge upon both of the questions made. The interest of a partner in partnership effects may be sold under a.fi. fa. for his individual) debt. Treadwell v. Rascoe, 3 Dev. 50. The sheriff must <&f necessity seise, and take into his possession, the effects. levied on, in order to make the sale, and the other partner cannot maintain an action of any kind either against the officer, who levies and sells, or against the purchaser who takes possession. Indeed, it is held, that a partner cannot maintain an action of any kind against one, who purchases copartnership effects from a copartner, though such sale was made in fraud of the rights of the partnership and to satisfy the individual debts of such copartner. Wells v. Mitchell, 1 Ire. 484. Such being the law, in the case of partners, between whom the relation is more intimate, a fortiori, it is so in reference to mere tenants in common. The legal interest of a defendant in undivided chattels may be seised and sold under execution, Islay v. Stewart, 4 Dev. & Bat. 160, and the Court treat the question as too plain to call for authority. We know of \u201cno principle which forbids a seisure and sale of a defendant\u2019s legal interest in undivided chattels \u201d The officer must, of necessity, take possession of the whole, as it is undivided, and sell the right of the defendant in his execution, in the whole, and the purchaser becomes a tenant in common with the other part owner, and they must arrange the matter between themselves, as neither can maintain trespass, detinue or trover, unless the property is destroyed, (or as some say) sold.\nUpon the second point, the construction ought to have been, that the evidence, if true, did not prove a conversion, either as to the tent cloth, gear and other articles, or of the wagon and horses. The defendant Hunt seised the horses, as a means necessary to enable him to complete his levy upon the salt After he had seised the salt, the plaintiff might, without opposition, have taken the tent cloth, and every thing to which he was entitled, if he had chosen to do so.\nAn officer may justify an entry upon the land of a third person, if necessary to enable him to levy on the property of the defendant in the execution. So it would seem, if this action had been trespass for seizing the horses, the officer might have justified the act, as necessary to enable him to make the levy.\nPer Curiam. Judgment reversed and venire de novo.",
        "type": "majority",
        "author": ".Pearson, J."
      }
    ],
    "attorneys": [
      "Craig, for the plaintiff.",
      "Boyden, for the defendants."
    ],
    "corrections": "",
    "head_matter": "JACOB BLEVINS vs. WILLIAM BAKER & AL.\nAn officer, who has an execution against a tenant in common of chattels, may levy upon the undivided property and take it into his possession, for the purpose of selling the interest of the defendant in the execution ; and he does not thereby subject himself to an action by the other tenant in common.\nThe cases of Tredwell v. Rascoe, 3 Dev. 50, Wells v. Mitchell, 1 Ire. 484, and Islay v. Stewart, 4 Dev. Bat. 160, cited and approved.' '\nAppeal from the Superior Court of Law of Asha County, at the Fall Term 1849, his Honor Judge Caldwell presiding.\nCraig, for the plaintiff.\nBoyden, for the defendants."
  },
  "file_name": "0291-01",
  "first_page_order": 311,
  "last_page_order": 314
}