In re Assigned Estate of Wetzler, Appeal, No. 148

Appeal, No. 148 | Pa. Super. Ct. | Jan 18, 1897

Opinion by

Reeder, J.,

This question arises upon the distribution of a fund created by the sale of Wetzler’s real estate. The facts were agreed upon.

William Lemmon held a judgment against Jesse Wetzler in the sum of $5,000, and Isaac Ramsey held a judgment against the same defendant for $975, the lien of the judgments upon the real estate of the defendant being of the same date. On November 30, 1892, Isaac Ramsey issued a writ of fi. fa. on • his judgment, and on this writ the sheriff of Lancaster county levied on the personal property of Jesse Wetzler on December 1,1892. Prior to the sale of the personal property by the sheriff, and after the levy, Jesse Wetzler made an-assignment of all his estate for the benefit of creditors to F. S. Groff, on December 6,1892, the sale being advertised to take place on the 8th of December, 1892. The day before the sale, namely, December 7th, Isaac Ramsey assigned his judgment to the said F. S. Groff, the assignee. Groff then made an arrangement with the sheriff that he (Groff), should sell the personal property of the said Jesse Wetzler which was levied upon, and apply the proceeds to the payment of the execution; and, under this' arrangement, he sold the same and realized the sum of $284.64. The real estate was then sold, and the balance in his hands, amounting to $4,169.15, is still in his hands.

The only two lien creditors who are entitled to distribution of this fund are William Lemmon and Groff, who held the assigned judgment given by Wetzler to Isaac Ramsey. Groff, as the holder of the Ramsey judgment, claims a dividend on the full amount of $975. Lemmon claims that the amount' realized by the sale of the personal property, $284.64, should be first credited upon Groff’s judgment, and distribution should be made upon the balance, namely $690.36.

It was said, in Miller’s Appeal, 35 Pa. 481" court="Pa." date_filed="1860-07-01" href="https://app.midpage.ai/document/millers-appeal-6231159?utm_source=webapp" opinion_id="6231159">35 Pa. 481, that “ a creditor is entitled to a dividend under an assignment, not merely as a creditor, but as an equitable owner of an assigned estate, to the extent of his ownership as fixed by the amount of the claim when the assignment is made.” This levy was made on the Ramsey judgment six days before the date of the assignment for the benefit of creditors. The levy was a lien upon the personal property at the time that it passed into the hands of the assignee. If the money had been made by a sale by the sheriff, it would have been credited upon the judgment on the docket, and the judgment would have stood as a lien against the real estate for the balance of the judgment still unpaid. The levy having been made prior to the assignment, the property was in the sheriff’s hands, under Ms absolute control to such an extent that it would have been larceny for the defendant in the execution to have extracted any portion of it from his custody. It, therefore, did not pass to the assignee by reason of the assignment; and, had the sale been made by the sheriff after the assignment, it would have been credited upon the judgment just as fully as though the sale had been made prior to the assignment. That the sheriff did not so sell, but, by reason of a private arrangement between Groff as assignee and the sheriff, it was sold by him, did not alter the manner of the appropriation of this money, and the court below, therefore, very properly directed that it should be treated as a credit upon the Ramsey judgment, and that distribution should only be allowed for the balance, namely, $690.36, instead of the whole amount of the claim. It was a satisfaction of so much of the judgment as was made on the execution. The goods levied upon did not pass by, being in the sheriff’s custody at the time of, the assignment for the benefit of creditors.

We do not think that Miller’s Appeal, 35 Pa. 481" court="Pa." date_filed="1860-07-01" href="https://app.midpage.ai/document/millers-appeal-6231159?utm_source=webapp" opinion_id="6231159">35 Pa. 481, and Patton’s Appeal, 45 Pa. 151" court="Pa." date_filed="1863-05-06" href="https://app.midpage.ai/document/pattens-appeal-6232035?utm_source=webapp" opinion_id="6232035">45 Pa. 151, relied upon by the appellants in this case, are in conflict with this decision. The principle there decided is clearly distinguishable from that which arises in the consideration of the present case. They decide that the right of the creditors upon the distribution of the fund of an assigned estate must be determined by the status of the claim at the time of the assignment; that, after the assignment, if the creditor obtains partial payment of his claim by execution process issued against property that did not pass by the assignment, he is entitled to distribution upon the whole of the amount of his claim; that, where a creditor is obliged to pay the entire amount of a debt due from him and a cosurety, in the distribution of his cosurety’s estate he is entitled to a distribution for the whole amount of his claim; that, where part of goods sold had been delivered and other goods were detained and sold by the vendors who applied the proceeds of-the goods thus sold to the payment of the notes given upon the sale, leaving a balance still due, the vendors are e2ititled to a dividend upon the whole amount of their claim as it existed at the date of the assignment. The decision in neither of these cases applies to the ease now under consideration. This case is clearly distinguishable fro2n them.

Judgment is, therefore, affirmed.