Hoyt vs. Van Alstyne, 15 Barb. 568

By the Court, Welles, P. J. The first point made for the defendant in support of the judgment of the county court, is, that the mare in question was not a team, nor shown to be necessary, so as to exempt it from the execution upon which it was taken by the defendant. Evidence was given tending to show that the plaintiff was a householder having a family for which he provided, and that this mare was all the team he had, and that it was used in prosecuting the business in which he was engaged. I think enough was shown to bring him within, and to entitle him to the benefit of the first

section of the ae of 1842. {Bess'. L. of 1842, eh. 157.) I cannot agree with the defendant’s counsel, that the execution under which the defendant justified, was issued on- a demand for the purchase money of this or any other property, so as to bring the case within the proviso of the

section referred to. The judgment upon which the execution issued was recovered in an action against the present plaintiff, for taking the mare without the consent of the owner, John E. Cornwell, and against his will, and converting and disposing of the same to his own use. To bring the case within the proviso, the execution must have been issued for the purchase money of property exempt by law from execution. ‘It would be a strained and unauthorized

interpretation of the word purchase as used in the act, to construe it in the sense contended for, which never was applied to it, except when used to express a mode of acquiring title to real estate, or to the crown. (1 Bl. Com. 215. 2 Id. 241. Id. 201. Burrill’s Law Diet. 842. 4 Kent's Com. 372, 3. 2 Coke. Litt. 184, .Thomas' ed. 150.) It is defined in all these authorities as including, in its most extensive sense, all and every mode by which a man acquires title to real estate by his own act or agreement, and as contracts-» tinguished from title by descent, or operation of law.

It is a misapplication of the term, to use it in that broad sense, in reference to personal property.

Although thus comprehensive in its signification as sometimes applied to title to or possession of lands, it does not include a possession acquired by force or wrong; for Lord Coke says, in the place to which I have referred, “so, I take it, a purchase is to be taken, when one cometh to lands by conveyance or title; and that disseisins, abatements, intrusions and such like estates gained by wrong, are not said in law to be purchases, but oppressions and injuries.” The definition of the word “ purchase,” in common usage as a verb, as appears by Dr.

Webster, is “ to buy; to obtain property by paying an equivalent in money; it differs from barter, only in the circumstance, that in purchasing, the price or equivalent given or secured, is money &c, (Web.fol. Diet,, Purchase It was in this sense, I have no doubt, it was intended to be used in the statute under consideration. By the compound word “ purchase-money” the legislature intended the money agreed to be paid by the purchaser, for the property.

The only remaining ground for reversing the judgment of the justice, as claimed by the defendant’s counsel, is that the plaintiff had no title to the property in question, and that his possession was shown to have been tortious, which conferred no title, and did not change the right of property. The defendant’s answer to the complaint was, first, a denial of each and every .allegation contained in the complaint, and second, a justication as a special deputy of the sheriff, under the execution.

Aside from the matter set up as a- justification, the fact of defect or entire absence of title in the plaintiff, would be no defense to the defendant. In an action of trespass for taking personal property, the plaintiff is bound to show title to the property taken, or a rightful possession.

In showing title, proof that he was in possession claiming title, is sufficient prima facie- evidence, to enable him to maintain the action ; and no one but the true owner, or one connecting himself with the true owner in some way, is at liberty to impeach his title, Aside from the protection which the execution afforded, the defendant stands as a mere stranger and intruder; and it might work great injustice to allow him to assail the title of the plaintiff to goods which he had tortiously taken, without right or justification. (Duncan v. Spear, 11 Wend. 54, and note.) [Monroe General Term, September 5, 1853.

Wclks, Selden and T. R. Strong, Justices,} The only remaining question is whether the execution in this case was a protection to the defendant. The execution was against the property of the plaintiff liable to be taken in execution ; and the defendant’s return stated that by virtue of the execution he had seized and taken one chesnut mare, the property of the defendant, (the present plaintiff.) It clearly, as it seems to me, would only justify him in taking the property of the defendant therein, which was liable to be levied upon and sold as the property of such defendant.

That was the extent of the authority which the execution conferred upon the present defendant, If the property belonged to John B. Cornwell, the execution could have no effect upon it. If the judgment in his favor settled the question of his title to the property taken, and he desired to obtain the possession, the law afforded him another remedy. If the horse belonged to the defendant in the execution, then the present defendant was a trespasser in taking it, for the reason, as before shown, that it was exempt by law from levy and sale. If it did not so belong to him, the execution had no effect upon it.

In any aspect in which I have been able to view the question, I am forced to the conclusion that the present defendant was a trespasser in taking the property, and consequently that there was no error in the judgment before the justice, For the foregoing reasons I think the judgment of the county court should be reversed, and that of the justice affirmed. Ordered accordingly.