Duncan v. M'Cumber

10 Watts 212 | Pa. | 1840

The opinion of the court was delivered by

Kennedy, J.

At common law, in England, the writ of fieri facias bound the defendant’s goods from its teste, so that a sale of the goods made thereafter by the defendant, though bona fide, might have been avoided by a seizure of the goods under the writ at any time before it became returnable. Anon. Cro. Eliz. 174; Cro. Car. 149, 181, 440; 1 Mod. 188; Gilb. on Executions 13, 14. It was no doubt presumed, when such writ was awarded, that it would not only be issued, but would be immediately put into the hands of the sheriff, and be by him executed. This, however, was not always the case. On the contrary, the notion of the goods being retrospectively bound from the teste of the writ, was frequently abused by taking out writs of fieri facias, one after the other, without ever delivering them to the sheriff, whereby the goods of the defendants therein named became bound, which consequently made the sales thereof by the defendants, and all commerce in regard to them, somewhat uncertain. To prevent this, as Chief Baron Gilbert observes, Gilb. on Executions 14, it was enacted, among other things, by the statute of frauds, 29 Car. 2, c. 3, sect. 16, “ that no writ of fieri facias, or other writ of execution, shall bind the property of goods, against whom such writ of execution shall be sued forth, but from the time that such writ shall be delivered to the sheriff, under sheriff, or coroners, to be executed; and for the better manifestation of the said time, the sheriff, under sheriff, and coroners, their deputies and agents, shall, upon the receipt of any such writ, (without fee for doing the same,) endorse upon the back thereof, the day of the month, or year, whereon he or they received the same.” 1 Mod. 188; 1 Sid. 271. But neither before nor since the passage of this statute, is the property of the' goods altered by the mere delivery of the writ to the sheriff, but continues, notwithstanding, in the defendant, till the execution thereof. The meaning of these words, “that the goods shall be bound from the delivery of the writ to the sheriff,” is, that after the writ is so delivered, if the defendant makes an assignment of his goods, unless in market overt, the sheriff may take them in execution. Lathal v. Tomkins, 2 Eq. Ca. Abr. 381,pl. 14; Smallcomb v. Cross, 1 Lord Raym. 252; per Holt, C. J. This statute, however, only protects goods in the hands of purchasers or strangers, where the goods are sold bona fide; for if the party die after the teste, but before the delivery of the writ to the sheriff, the goods are bound in the hands of his executors or ádministrators; for this is not a change of property by sale, or for a valuable consideration; Comb. 145; so that in this respect the law is still the same that it was before the statute, which was made for the^benefit of strangers, who might have acquired a title to the goods between the teste of the writ of execution, and the time of the delivery thereof to the sheriff, and not for the benefit of the party, or his executors or administrators. Bac. Abr. tit. Execution 716, 733; Gilb. on Executions 15, 16. That the principle of the common law of England, in regard to the goods of a defendant, in an execution, being bound thereby from its teste, was introduced into and adopted in Pennsylvania, upon its first settlement as a province, is evidenced very clearly by our act of assembly, passed for the prevention of frauds and perjuries, in 1772. The fourth section of this act is an exact transcript' of the sixteenth section of 29 Car. 2, c. 3, already recited, with the exception of the words “ of the person,” which appear to have been omitted in the English statute, evidently from oversight. Had not the rule of the common law of England on this subject been in force here, the passage of our act would have been wholly unnecessary. But being in force here, and the like evils experienced from it, as were there, it became necessary to apply a similar remedy. It is evident, therefore, since the writ of fieri facias in this case was delivered to the sheriff before the executions were issued, under which the constable took and sold the goods, that they were bound by the fieri facias, when the executions came first into the hands of the constable, whether the sheriff had actually then made a seizure of the goods or not: and as against a purchaser from the defendant in the execution, the sheriff would, by virtue of the lien thus acquired, have had a right to seize or take the goods at any time before the return-day of the fieri facias had passed by, and to sell them afterwards, for the purpose of satisfying the debt mentioned in the writ. But whether he had such right, as against a purchaser without notice of the lien under the fieri facias from a constable, where the latter took and sold the goods under executions authorizing him to do so, seems to presenta different question. Under the statute of 29 Car. 2, it has been held, that goods bought at a sale made under an execution, delivered to the sheriff subsequently to the delivery of a prior execution, were protected from the prior execution, in the hands of the purchaser under the second execution; although, as to any other party, the goods were bound by the prior delivery of the first writ, under which the sheriff ought to have taken and sold them. This distinction seems to have been considered necessary, in order that the ends of justice might be advanced, which it was thought would be frustrated, should the sales made under executions be suffered to be invalidated by other executions, in being before or at the same time. Smallcomb v. Cross, 1 Lord Raym. 252; Hutchison v. Johnson, 1 Term Rep. 729. It is certainly of the first importance, in order that the ends of justice may be fully met and answered, that personal, as well as real estate, should bring fair prices at judicial sales, which cannot be effected with any degree of certainty, without giving all- reasonable protection to the purchasers thereof. And seeing such sales are not only made publicly, but at a certain time and place, fixed on for that purpose by the proper officer of which he is required to give a certain previous notice, either by written or.printed hand-bills, set up in the most public places, or advertisements published in the newspapers of the county, so that all wishing to buy may be informed of the sale about to be made, and that other officers, having judicial process in their hands, which they ought to execute, may be advised of what is going on, and assert their claims of preference, if they have any, it would seem to be both expedient and reasonable, that property once sold, in this manner, should not be liable to be sold a second time, under judicial process against the same defendant, after it shall have gone into the hands of the purchaser, at the first sale. If an officer, who has judicial process placed in bis hands to be executed, shall, through neglect of duty, or want of proper vigilance upon his part, suffer a sale of property to be made, under judicial process of later date, as to lien, whereby an injury or loss shall accrue to the party in whose favour he holds such process, it is better that he should be held liable for such loss than that the purchaser should be disturbed in his enjoyment of the property after having bought and paid for it. Under this view of the case, and the law applicable to it, we are of opinion, that the sale of the goods in question, so far as the constable toolt and sold them, under the execution against Rebecca Fellows, as the executrix of Moses Fellows, deceased, was good, and that the sheriff could not afterwards take the same goods out of the possession of the purchaser at constable’s sale. Consequently, if Duncan, the defendant below, either advised the sheriff or his deputy to take the goods, or aided in doing so, he thereby became a trespasser, and liable to be sued by the plaintiff below as such. But in regard to the goods taken and sold by the constable, under the execution against Rebecca Fellows, individually in her own right, we think the constable had no right to take the goods in her possession belonging to the estate of Moses Fellows, the testator, as long as the sheriff had in his hands an execution against her, as executrix of the testator, which bound the goods. Farr v. Newman, 4 Term Rep. 621. The court below, however, instructed the jury otherwise.

Judgment reversed, and a venire facias de novo awarded.