205 Pa. 214 | Pa. | 1903
Opinion by
This is a suit against the sheriff of Philadelphia county for damages which the appellant alleges he sustained by that officer’s wrongful distribution of the proceeds of the sale of certain real estate. His claim is that of a mechanic’s lien creditor, and he claims that his lien ought to have been paid out of the proceeds of the sheriff’s sale. The sheriff, in the absence of any notice to the contrary, made the distribution himself, as was his right, without paying the money into court; but he, of course, did so at his own risk : Franklin Township v. Osler, 91 Pa. 160. In the distribution the claim of the appellant was ignored, because, with a number of other subcontractors, he had entered into a written agreement with the Integrity Title, Insurance, Trust and Safe Deposit Company, in consideration of its promise to advance f20,000 to the contractor, that they would not file any liens or claims which would affect the first mortgages given to secure the said company for its advancement. The fund produced by the sale was insufficient to pay these first mortgages and other mechanic’s lien creditors who had not waived their right to file liens, and the sheriff distributed the money, first, to those mechanic’s lien creditors who had not waived their rights, and the balance proportionately to the mortgages, the proceeds being insufficient^» pay them in full.
To avoid the effect of his agreement not to file a mechanic’s lien, the appellant undertook to prove that it had been executed underacotemporaneous parol agreement, which was the inducement to him and the others to sign it, that it should not go into effect unless all persons entitled to file mechanics’ liens should sign it, and that, all such persons not having signed it, it was inoperative. Without passing upon the sufficiency of his proof to establish the alleged parol agreement, it is clear he was bound by the written one, because there was no proof that the oral one had been made with the Integrity Title, Insurance, Trust and Safe Deposit Company. True, the offer was to show that the
But, even if the appellant could avoid the effect of his agreement, he failed to make out a case in the court below entitling him to recover. The action was originally in assumpsit, but, on the trial, was changed to trespass against the sheriff for a wrongful distribution — in other words, for negligence in the discharge of an official duty. In support of his claim that the distribution was improper and that he ought to have been paid, the plaintiff proved nothing more than that certain properties, against which he had filed an apportioned lien, had been sold by the sheriff, and the proceeds had been distributed by that officer among certain other lien creditors, to the exclusion of himself. His position, as we understand it, is, that because he proved he had filed a lien against the properties sold, he had made out a prima facie case, and the' burden was then upon the sheriff to show that the distribution had been properly made. That officer was not called upon to prove anything until the plaintiff had proved what he had charged in his statement as his cause of action. It was that the sheriff had not regarded his duty and had not paid to the plaintiff a portion of the proceeds of the sale, but, on the contrary, had paid the same to persons who
Judgment affirmed.