Kent, Santee & Co.'s Appeal

87 Pa. 165 | Pa. | 1878

Mr. Justice Paxson

delivered the opinion of the court,

The facts of this case are as follows: On November 5th 1875 nine writs of fieri facias were issued out of the Court of Common Pleas of Cumberland county against L. T. Greenfield, and the same day were placed simultaneously in the hands of the sheriff. On the morning of November 6th the sheriff levied on the drygoods store and other personal property of the defendant and took possession thereof. After making the levy in due form, the sheriff was informed by the attorney for the execution-creditors that Mr. Greenfield would make an assignment. On the same day Greenfield executed an assignment for the benefit of his creditors to S. H. Gould, one of the execution-creditors; the trust was accepted and appraisers appointed. An arrangement was then made between the assignee, the sheriff and the attorney for the execution-creditors, by which the assignee was to take the possession of the property levied upon, sell it and turn the proceeds over to the sheriff, the same as if the sheriff had sold it under his writs, to be distributed pro rata upon the executions, the amount thereof being largely in excess of the appraised value of the property. Upon this express agreement the property was delivered to the assignee by the sheriff. It was subsequently sold by the assignee under this arrangement, and he then filed his account, in which he claimed a credit for the payment of the proceeds to the sheriff. The auditor disallowed this credit, upon the ground that the agreement of the assignee to take the property, subject to the lien of the levy made by the sheriff, was “illegal, null and void,” and distributed the money “among all the creditors of the assignor in proportion to their respective claims as provided by the Act of 17th April 1843.” The court below reversed the auditor, upon exceptions filed, and directed the fund to be applied fro rata to the nine executions. From this decree an appeal was taken by the appellants, who are general creditors, and they assign for error the ruling above stated.'

The law does no.t favor an execution for the mere purpose of lien. There is a line of cases which hold that instructions to the sheriff to stay proceedings, or not to proceed upon an execution, or which indicate that it was issued not for the purpose of levy and sale, but for the purpose of lien, and to acquire security for the debt, will destroy the lien as to purchasers and subsequent execution-creditors : Commonwealth v. Stremback, 3 Rawle 341; Corlies v. Standbridge, 5 Id. 235 ; Freeburger’s Appeal, 4 Wright 247 ; Parys’s Appeal, 5 Id. 273; Keyser’s Appeal, 1 Harris 409; Starr’s Appeal, 14 P. F. Smith 447. This is a matter, however, of which the defendant cannot complain. The execution in such case is good against him. It is postponed only as to purchasers and subsequent execution-creditors. An assignee for creditors is not a purchaser. He is a mere volunteer: Ritter v. Brendlinger, 8 P. F. Smith 68; Missimer v. Ebersole, reported, ante, page 109. The assignee claims through the assignor. His rights rise no higher. The creditors claim through the assignee. They have his title, nothing more. The assignee took possession of the property under an express agreement to turn over the proceeds thereof to the sheriff. The auditor finds the transaction to have been free from fraud. The judgment upon which the executions were issued were bona fide. The sheriff could have gone on and sold, and would have done so but for the agreement of the assignee. There was nothing to’ indicate collusion for the purpose of hindering and delaying creditors. The object was manifestly to obtain a better price for the property. In doing so no one was injured. It has always been considered that an assignee having funds in his possession would have the right to redeem property of his assignor held in pledge or as collateral for a debt. In Frank’s Appeal, 9 P. F. Smith 190, it was held that an assignee would be justified in buying assigned real estate at sheriff’s sale to save it from sacrifice, even if it resulted in a loss. Had the property levied upon exceeded in value the executions, I have no doubt of the right of the assignee to have released it from the levy by paying off the executions. The same result was accomplished in a different way. He agreed to sell the property subject to the lien of the executions. In Osborn’s Estate, 5 Wharton 266, where an assignment ivas made for the benefit of creditors, and the landlord of the assignor gave notice to the assignee of the amount of rent due before the sale or removal of the goods, and told him that he wished to have it secured to him, Avhich the assignee promised to do as far as the law allowed, it was held that the assignee was justified in paying the amount of rent to the landlord.

We see no error in this record.

The decree is affirmed and the appeal dismissed at the costs of the appellant.