85 Pa. 111 | Pa. | 1877
delivered the opinion of the court, October 1st 1877.
In the distribution of the fund produced by the sale of Adolph Prieson’s property, the first question that arose was one of fact. Jonas Zindel, the" appellee, asserted a right to participate in the distribution, by virtue of the lien of three executions issued to constable Keller, in judgments, obtained on the 3d and 13th of June 1876, before a justice of the peace. On behalf of the appellant this right was denied, on the ground that no levy had been actually made. Prieson testified that although the constable was at his store, no intimation of an intention to make a levy was given him, and that he remained in possession until the store was closed by the sheriff. On the other hand, the executions which were issued on the 26th of July 1876, exhibited an endorsement on each of a levy made on the 7th of August on “one soda-fountain and fixtures, seven show-cases and contents, and a lot of whiskey, brandy and wines in bottles and barrels.” On each of the three executions issued on the 15th of August the same entry was copied, and reference was made to the former executions and the original endorse-.
It was also objected to the application of the fund to the claim of the appellee, that, as there was no actual seizure of the property, and the defendant in the executions was left in its possession, the levy was not legally made. A reference to rules which precedents have firmly established, sufficiently answers this objection. It was said by Strong, J., in Commonwealth Insurance Company v. Berger, 6 Wright 292, that “ strictly, it is true, a levy is an actual seizure; but in this state it has been held that if the officer, with the goods in view and within his power, assert that he makes a levy upon them, his acts are equivalent to a levy.” This statement of the legal principle is warranted by the cases of Wood v. Vanarsdale, 3 Rawle 401, and Trovillo v. Tilford, 6 Watts 468. To continue the lion of an execution, it is not necessary that the personal property levied on should be taken into actual possession; it is sufficient if it be forthcoming to answer the exigencies of the writ: Dorrance’s Administrators v. The Commonwealth, 1 Harris 160. The mere leaving in the possession of the defendant of goods levied upon, with the permission of the plaintiff, will not divest the lien of the execution, unless there be fraud: Keyser’s Appeal, 1 Harris 409.
While there has boon no attempt to prove any fraudulent agreement, practice or contrivance on the part of the appellee, it is insisted that his claim should be postponed, because all the proceedings on the executions indicated an intention not to sell, but to cover up and secure a lien upon the goods made subject to the levy. Two of the appellee’s judgments were recovered on the 3d of June 1876. The third was recovered on the 13th of that month. Executions were issued on the 3d of July, and wore stayed on the 22d. On the 26th of July the second series of executions went out. They were levied on the 7th of August, and were returned with the levy
Decree affirmed, at the costs of the appellant, and the appeal dismissed.