41 Ill. 65 | Ill. | 1866
delivered the opinion of the Court:
Some time in the early part of February, 1859, J. H. Mills, who was then engaged in the business of merchandising, in the city of Joliet, made an assignment of his stock and assets, to J. EL. Quinn and Joel George, for the benefit of his creditors. On the 10th day of February, 1859, Norton, Jewett and Busley recovered a judgment in the United States Circuit Court for the Northern District of Illinois, for the sum of $2,451.00, and an execution was issued to the United States Marshall. They, on the 14th day of February, filed their bill in chancery in the District Court, in aid of their execution, making Quinn and George defendants, setting up the levy, and alleging that the transfer by Mills to the assignees was fraudulent, praying that the assignment might be held to be fraudulent, and the property sold to satisfy their execution. This bill was afterward dismissed.
Alonzo Leach, the sheriff of Will county, on the 23d day of February, 1859, filed a bill of complaint against Charles N. Pine, Joel George, John H. Quinn, Cephas II. Norton, Albert Jewett and Benjamin 0. Busley. On the 21st of March following, by leave of court he filed an amended bill. The bill and amended bill allege that he, as sheriff of Will county, by virtue of several executions against Mills, levied upon a stock of hardware, on the third day of February, 1859, and took the same into possession. The bill alleges "that Charles H. Pine, in the absence of complainant, fraudulently obtained possession of the goods; that, by virtue of such executions and levies, he, as sheriff of Will county, had advertised the goods for sale; that Morton, Jewett and Busley, in violation of an injunction granted under the original bill, had commenced a suit in replevin in the Circuit Court of the United States, to recover the possession of the goods; and that one Boyer and Bushnell had taken forcible possession of the stock of hardware, and deprived complainant of possession, and prayed a further injunction, which was granted.
Afterward, the parties entered into a stipulation, that the goods be sold, and, on a final determination of the matter, the proceeds of the sale be distributed according to the rights of the parties. Morton, Jewett and Busley then filed their bill in chancery in the Will Circuit Court, against Mills, the debtor, Leach, the sheriff, the assignees, Henry K. Stevens, Elizabeth Mills, B. U. Sharp, George. Allen, George M. Sharp and S. 0. Simonds, creditors. By these two bills, all of the parties in interest were before the court. And by a subsequent stipulation the two cases were consolidated. And Morton having in the meantime died, an order was made that the suit progress in the name of the survivors.
On the hearing, it appeared that S. O. Simonds, on the 19th day of January, 1859, issued an execution on a judgment for §315 and costs, which he had recovered in the Cook County Court of Common Pleas, against Mills, and directed to the sheriff of Will county, and which came to his hands and was levied on the goods in controversy on the 20th day of that month. Also another execution from the same court for the sum of §150.57 and costs, directed to and received by the sheriff of Will county, which came to hand on the 21st of January, 1859, and was on the same day levied on the same stock of goods, and another from the same court, directed to and received by the same sheriff on the same day and levied on the same goods, for the sum of $83.14 and costs. . And he on the same day received and levied on the same goods another execution from the same court, for two hundred and twenty-one dollars and seventy-five cents and costs. All of these executions were in favor of Sharp, and Sharp and Allen, and against Mills.
Also another execution in favor of Elizabeth Mills and against John H. Mills, on a judgment recovered in the same court, for the sum of $1,325, dated January 19, 1859, and which came to the hands of Leach as sheriff, on the 3d day of February, 1859, and was levied on this stock of hardware on that day. Likewise, another execution on a judgment recovered in the Will Circuit Court for $344.43 and costs, in favor of Henry K. Stevens and against Mills, which came to the hands of the sheriff and was levied on the stock of hardware on the 3d day of February, 1859. It appears from the evidence that these several levies were never released, set aside or discharged.
On the hearing, the court below decreed that the money in the hands of the sheriff be paid to .Horton, Jewett and Busley, and that the sheriff deliver over to them all or any lands or securities for the payment of money, given or executed for the purchase of property at the sale. And the case is now brought to this court and a reversal is asked on several grounds, the principal of which is that the decree is inequitable and unsupported by the evidence.
The proposition will not be questioned, that all executions coming to the hands of the sheriff became liens on this property in the order in which they were received, and it is equally true, that, by the various levies made by the sheriff, these liens were perfected and fully consummated, as against all other subsequent liens whether by execution or otherwise. When the sheriff completed his levies by seizing the property and reducing it to possession, other parties having junior executions and liens could not gain a preference by obtaining possession by force, by fraud, or, in fact, by any means except on the abandonment of the former levies, or by such liens being satisfied and discharged. The executions, then, in this case, became liens in the order in which they came to the hands of the sheriff. And it appears that the execution of Norton, Jewett and Busley was last delivered to the officer to execute, and the lien created by it was junior to all of the others. But it is insisted that the sheriff, after it was levied, abandoned the prior levies made by him, and that Norton, Jewett and Busley’s execution thereby became preferred to the others. We will proceed to examine that question, as upon it the whole controversy turns.
The testimony of Smith and Bushnell seems to establish the fact that there was, when they first called on Leach, two executions in his hands, one in favor of Smith and Goodell and the other in favor of the Merchants and Drovers’ bank, and both of them levied. Also, that there were other executions in his hands, but which, as they testify, the sheriff said were not levied. They further testify that Bushnell purchased the first two executions and had them assigned. Bushnell says they amounted to about six hundred dollars. He further states that Leach said he was not going to levy the other executions, as if the assignment was valid there was nothing to levy upon, and if it was not, they were liens upon the property. Opposed to this is the affidavit of Leach, his deputy, and of Mills that these executions were levied, and the indorsements on the executions show that they were levied, perhaps, as early as this conversation occurred.
While the purchaser of the Smith and Groodell and the Merchants and Drovers’ bank executions was substituted to the prior lien created by their levy on the goods, he did not have the right .to tack to these executions that of Norton, Jewett and Busley and cut off the prior liens of the other executions to that of the lien of Norton, Jewett and Busley.
When a sheriff has in his hands an execution, and levies upon property and ¡reduces it into possession, he then has it in the custody of the law, and it is not essential to the lien of other executions in his hands at the time, or subsequently received, that they should be levied. The discharge of such a levy by the plaintiff in execution, or by the payment of the execution by the defendant, would not, in the least, change the liens of the executions in the hands of the sheriff and not levied, nor would it authorize the defendant to resume possession of the property levied upon, nor would it authorize another officer having a junior execution to take the property out of the hands of the sheriff to satisfy his execution. But, in such a case, it would be the duty of the sheriff to retain the property under the liens of the other executions, and he may indorse a levy on them if he choose, and should sell the property to satisfy such liens. The first execution justifies the seizure of the property, and, when satisfied or otherwise discharged, the subsequent executions authorize and require him to retain and sell it for their satisfaction. Having already seized the property when he made the levy, he is unable to do so again while it is in his possession. And the seizing of the property and reducing it to possession is the levy, and the execution authorizes and requires it, and the indorsement is only the evidence of the fact.
It is clear, from the evidence of Smith and Bushnell, that the levy had been made, and that the sheriff was then in the possession of the property, and that other executions were then in his hands which he claimed were also a lien on the property, subject to the executions under which it had been seized. And we infer from the record, although the case has not been prepared so as to leave it without doubt, that these executions were those levied on the 19th and 20th of January and the 3d of February. If so, nothing that was subsequently done could in any manner have changed or defeated the lien that was created by placing them in the hands of the sheriff.
The obtaining possession under the execution in favor of Horton, Jewett and Busley, whether by fraud on the part of Bushnell, or by collusion of the custodian and the assignees with the marshal could not, without the assent of the sheriff or of the several plaintiffs in execution, in the slightest degree prejudice the liens of these execution creditors. And there is no pretense that the sheriff voluntarily parted with the possession of the property, and, in the absence of all evidence, we will not conclude that he voluntarily rendered himself liable for the amount of these several executions by parting with property held for their satisfaction. Nor is there any evidence in the record from which it may be inferred, that any of the judgment creditors released their liens under their executions.
The evidence seems to be abundant, that the judgment in favor of Elizabeth Mills was fraudulent, and, if so, the execution would also be void and of no effect. The court, therefore, did right in excluding it from all participation in the fund. But the decree was erroneous in preferring the execution of Norton, Jewett and Busley to the others.
Upon this record, it would have been proper, if set up by the pleadings, that the assignee of the executions in favor of Smith and Groodell and the Merchants and Drovers’ bank, if still unpaid, should have been first satisfied out of the fund as a first lien; then to have paid the other executions in favor of Simonds, Sharp <fc Allen, and Stephens, in the hands of the sheriff, excluding the execution in favor of Elizabeth Mills, in the order in which they came to his hands; and, lastly, the remainder of the fund, if not more than necessary for the purpose, to the execution in favor of Jewett and Busley, survivors, etc.; and, if any surplus, to pay it to the assignees.
No question arises on the assignment, as the property was sold and a distribution was to be made by the terms of the stipulation of the parties. It was a technical error, but perhaps not such as to require a reversal, that the decree was in favor of Norton, who was dead. It was an inadvertence not likely to again occur. The decree is reversed and the cause remanded.
Decree reversed.
