126 Pa. 523 | Pa. | 1889
Opinion,
The question in this case arises upon an appeal from 'the decree of the Court of Common Pleas of Monroe county, distributing the proceeds of the sheriff’s sale of the personal property of Thomas Miller. The fieri facias issued upon the judgment of D. H. Wilson & Co., came into the sheriff’s hands October 2, 1886; the writ of the Stroudsburg Bank, October 20th, thereafter. The sheriff made no levy under the Wilson writ until the bank writ came info his hands; indeed, it does not appear by the record that a levy was at any time made on the former writ.
The sheriff testified that at the time the Wilson writ was received, he had no other business up in that country, and he asked Mr. Burnett, the attorney, if there was anything urgent about the matter, and Burnett replied he did not know that there was, as no one could have any preference; that Burnett afterwards told him he need not be in a hurry, as he thought the matter would be arranged, and that he would let him know, etc., but that he received no further instructions from Burnett in the matter. The sheriff, thereupon, without the knowledge of Burnett, made a memorandum upon the writ, in .the words following: “ To hold till further orders from Burnett, attorney.” The sheriff testifies as follows: “ I do not know that Mr. .Burnett used the word ‘ hold.’ I did not take any memorandum of this conversation. Mr. Burnett called my attention to this indorsement in lead pencil a few days ago; he asked me how I came to make this indorsement on the writ. I think I told him among other things that I thought Thomas Miller had given me instructions to stay the writ; my reason for saying so was that the matter was stale and I did not just think. I do not recollect whether Thomas Miller told me to stay the writ, and I cannot tell where he talked to me about it.”
Mr. Burnett testified, that after the writ was issued, the sheriff said he could not go up to Miller’s at that time, as he had other engagements, and that he told the sheriff he (the sheriff) knew his duty in the premises; that he did not direct
When the Stroudsburg Bank issued their writ they gave instructions to the sheriff to proceed at once. A levy was thereupon made on the latter writ, the personal property sold, and the proceeds brought into court for distribution. The contention of the Stroudsburg Bank is, that the effect of Mr. Burnett’s directions to the sheriff is to postpone the Wilson writ, and to give the bank writ a preference in the distribution.
It is undoubtedly true, that an execution issued or kept on foot with intent to hinder, delay, or defraud creditors, and not to make the money, will be postponed to a subsequent writ: Snyder v. Kunkleman, 3 P. & W. 487; Keyser’s App., 13 Pa. 409. But a creditor will not be postponed, merely because he issued his writ to prevent other creditors levying on the property, if he does not interfere with the sheriff in the performance of his duty, nor give any directions inconsistent with the exigencies of the writ: Brown’s App., 26 Pa. 490. A direction to stay proceedings until further orders, however, or any act evincing an intention not to have a sale of the property, but to hold the writ for purposes of lien, is a waiver of the priority of the execution in favor of another writ, coming into the sheriff’s hands in the meantime: Eberle v. Mayer, 1 R. 366; Lowry v. Coulter, 9 Pa. 349; Freeburger’s App., 40 Pa. 244.
But whether we take the statement of the sheriff or of Burnett, or of both of them, we fail to find enough to justify the finding of the auditor, that “ the sheriff was instructed to hold the writ until further orders from Burnett.” The full import of all that is shown is, that the sheriff was not prepared to execute the writ at once, and Burnett being informed of this, and believing that no claim could have precedence of his writ, excepting, perhaps, some labor claims, of which he did not appear to have been fully informed, told the sheriff there was no hurry about it, that the matter might be arranged, that he would let him know. The writ would seem to have been issued not for security, nor to hinder or delay creditors, but to make the money. The delay in the execution of the writ would appear to have originated in the suggestion of the sheriff, and
The writ of D. H. Wilson & Co. waived the benefit of the exemption law; the bank writ did not. The property levied upon and sold consisted wholly of that which had been set aside under a previous writ issued by the bank on their judgment; there were no other judgments, and it does not appear that there were, in fact, any labor claims; there was therefore no motive for any fraudulent action or collusion.
The execution of D. H. Wilson & Co. having been first issued would ordinarily, therefore, be first entitled; but, unfortunately, there was no levy made upon that writ. The levy was made upon the writ of the bank only, and upon that writ the personal property was sold. In McClelland v. Slingluff, 7 W. & S. 134, it was held that in such ease the sheriff must apply the money to the writ upon which the levy and sale were made, and not to the first writ, upon -which no levy was indorsed or attached. The money made when this is the case, says Mr. Justice Rogers, belongs to the second execution creditor on whose writ the goods were levied and sold, leaving the first execution creditor to an action against the sheriff for redress. To the same effect is Schuylkill Co.’s App., 30 Pa. 358.
The decree of the Common Pleas is reversed and the record remitted, in order that distribution may be made in accordance with this opinion; the appellee to pay the costs of this appeal.
