5 Ala. 43 | Ala. | 1843
Lead Opinion
1. The judgment of the Circuit Court in effect determines, that the plaintiff is not entitled to recover of the defendants any part of his execution, though there was an excess in the sheriff’s hands, after satisfying th efi. fas. hi favor of Miss Dillard, to which the record does not show that there was an adverse claimant. This is clearly erroneous, and can be accounted for, only by supposing that in litigating the question of priority between the different executions, the amount to be appropriated to their payment was entirely overlooked. Conceding that Miss Dillard was entitled to a prior lien, yet after she was paid, the residue of the money should have been adjudged to the plaintiff.— The sheriff appears to have returned the facts specially on each of the executions, and asked the direction of the Court as to the order in which they should be satisfied: this was sufficient (according to the case of Braly v. Stout, Ingoldsby & Co., at the present term,) if the return was made in good faith, and for the purpose of obtaining the instruction of the Court, to have relieved the defendants from a judgment for damages and interest.
2. The second objection made by the plaintiff’s counsel, to the proceedings below, supposes, that although a fieri facias may be placed in the sheriff’s hands, and thus become a lien upon the defendants goods and chattels, subject to be seized by it, yet it will become wholly inoperative, if the plaintiff, by any act of his, prevent it from being executed.
In The United States v. Conyngham, et al., [4 Dallas’ Rep. 358,] it appeared that the plaintiffs in a.fieri facias caused the same to be levied on goods belonging to the defendants, and then assigned their judgment: their assignees permitted the goods to remain in the defendants’ possession, until an execution at the suit of another plaintiff] was levied on them: The Court held, that the first fi. fa. had lost its lien, and that the latter was entitled to priority. So, where a plaintiff obtained a judgment in one Court, and on the first of January, 1811, delivered to the sheriff a fieri facias issued on that day, with direction not to levy it until further instructions. On the 3d day of the same month the sheriff was instructed, and accordingly levied the execution, but did not remove the goods from the defendant’s house, but left them according to the directions of the plaintiff till further orders. On the 4th day of the same month, two judgments were rendered in favor of other plaintiffs, and executions issued and levied the same day on thegoods leftin defendants’ possession. The question was, whether the execution first issued and levied, should be satisfied before those under whichit was removedfrom the defendant’s possession. The Court said,it would « make no distinction between a suspension for one day, or one or more months. The order of suspension deprives the act of the officer, in pursuance of it, of all its force and effect, until it is restored by a countermand; and if in the mean time a second execution is taken out and levied, the former must be postponed.” Further: “ If the execution is delivered to the officer, with orders not to levy it at all, or until further orders, the purpose of the delivery is not answered, and all the legal consequences of the measure, in respect to creditors and purchasers who would otherwise have been affected by it, are defeated. If the officer is ordered to levy on, but leave the property with the owner until he shall be otherwise directed, the party undoes by such an order, all that the officer does by the seizure — it works no change of the property — it is no levy in respect to third persons. It is not necessary that the officer should remove the property or even sell it immediately, if this be done in a reasonable time, &c.” [Berry v. Smith, 3 Wash. C. C. Rep. 60.] And in Storm v. Woods, [11 Johns. Rep. 110,] it is considered a well estab
Where the plaintiffs, having a prior judgment, issued a fieri facias thereon in January, with instructions to the sheriff “ to malee a levy on the property of the debtor, but to do notlmig until ordered, unless crowded by younger executions, but by no means to let the execution lose its preference” — the sheriff did nothing except merely to receive an inventory of the personal property of the debtor until another execution was delivered to him hi May following, at the suit of a junior creditor: it was held, that the first execution was dormant and constructively fraudulent as against that which issued subsequently. [Kellogg v. Griffin, 17 Johns. Rep. 274.] Further, say the Court, the evidence warrants the inference, that the plaintiffs issued their execution, not with an absolute intention of collecting their debt, but partly at least, with a view to cover the property of the debtor for his use. Having made use of their execution in a manner wMch the law deems fraudulent as against other creditors, it was in vain that they told the sheriff “ by no means to let their execution lose its preference.” The sheriff has no discretionary power hi that respect. The law determines the preference, &c. [See also, Doty v. Turner, 8 Johns. Rep. 20.]
In Benjamin v. Smith, [4 Wend. Rep. 332,] it appears that a fieri facias was issued and placed in the sheriff’s hands on the 27th February, 1827; on the 9th March it was levied by a deputy who took an inventory, but was directed by the plaintiff hi execution not to proceed further until July, when defendaut pro. raised to pay it. In August, the deputy and the plaintiff had a conversation about the busmess, which was calculated to induce the former to expect further directions before he proceeded to close the execution. In October an execution was issued against the same defendant, and placed in the hands of another deputy, at the suit of a different plaintiff; under this execution, the pro
If these decisions ascertain the law correctly, it seems to me to be perfectly clear, that a fieri facias,Xho collection of which is delayed by the act of the plaintiff, never acquires a lien upon the goods of the debtor as against a junior execution, or if it does the lien is gone as soon as the interference of the plaintiff commences, and will only become operative from the time the sheriff is required to execute its mandate. The process is mandatory, and requires the officer to make a sum of money of the goods and chattels, &c., of the defendant, and to have the money at a term therein designated, to render to the plaintiff, together with the writ, &c.: if the course of law is arrested by the direction or approval of the plaintiff, during all that time nothing is done towards enforcing the payment of the judgment, and the effect, in point of fact, is the same as if no execution had issued. The legal presumption is, that the plaintiff intended to favor the defendant, by suing out his execution; while he would obtain a lien prior to others, he would under its protection secure to the defendant the enjoyment of his property against subsequent executions. No matter how humane and benevolent the motives which might prompt to such a course, they would not relievo the elder execution from the imputation of being fraudulent in law. [Benjamin v. Smith, 4 Wend. Rep. 336.] “ If,” says Mr. Justice Marcy, in the case cited, “ the application of legal principles were to be influenced in any considerable degree by the indulgence of sympathetic feelings, the uncertainty of the law would soon be subjected to a much more serious reproach than the sneer of those who are ignorant of the true character of the science of jurisprudence.”
By the act of 1828, “ relative to the satisfaction of executions,” it is enacted, that « The lien created by the delivery of an execution from a court of record to the sheriff, shall continue to bind the property of the defendant, as between different judgment creditors in the courts of record in this state, in the following manner, viz: if a term shall elapse after the return of the first execution, before an alias shall be sued out and delivered to the sheriff, the lien created by the delivery of the first writ of execution shall be cancelled and of no avail; but if a term shall not have elapsed, and the alias shall be delivered to the sheriff before the sale of property, under a junior execution in favor of another creditor, the lien shall continue, notwithstanding the alias may not have been delivered until after such junior execution; the sheriff may return an execution any time after its receipt, and thus excuse himself for a failure to make the money ; if he were to do so, he would render himself liable to the plaintiff, if by retaining it to the proper day the money could have been collected. Here, the sheriff does not return the executions, because nothing could be made by holding them up ; but because the plaintiff directs him to do so, and when, from the facts stated in the record, a part of the money at least could have been made. The order of the plaintiff to return the executions before they were returnable, must be regarded as equivalent to a direction not to levy; as they would thereby lose their energy, and the sheriff be thus deprived of all power to coerce payment. When the order of the plaintiff was given to the sheriff does not appear, but there was certainly ample time to have made a levy between the days when the return was, and when it should have been made ; and the consequence is, that the executions of Miss Dillard became dormant and inoperative, for all purposes against an execution issued on a junior judgment, and levied, before the alias fi. fas. wore issued in her favor.
3. Under the act of 1807, which declares, the « execution shall bind the property of the goods against which such writ is sued forth,” &c. it has been determined that in order to create a lien, the goods must be in the county to which the execution issued. The statute of 1828, is passed in reference to the act of 1807, and requires that the execution first issuing shall create a lien, as the condition on which the alias shall be entitled to priority of a fi. fa. on a different judgment, which is first delivered to the officer to execute. This is clearly shown by the first clause of the section cited. As it respects the merchandize, it is admitted that it was not in the county of Sumter until after the alias fi, fas. in favor of Miss Dillard were placed in the hands of the sheriff; consequently, none of the previous executions at her instance, acquired a lien on them. So that conceding Miss D’s executions were entitled to all the efficacy which it is possible for such process to exert, and the alias fi. fas. cannot overreach and defeat the lien of the plaintiff. But in considering the second point, I
This is a contest between the rival executions of the plaintiff in error and Miss Dillard. The judgments of Miss Dillard were first obtained, and she has the superior lien on the property of the defendant in execution, unless it has been, lost by her direction to the sheriff on the 25th March, 1841, to return the executions, the proper return day being the ensuing first Monday of April. This direction, it is contended, will render the execution “ dormant.”
We understand the law on this subject to be, that if a judgment creditor place his execution in the sheriff’s hands, with instructions. not to levy, or after'a levy, to hold it up and not to sell, it will be. constructively fraudulent against junior judgment creditors, who^ will thereby obtain the superior lien. The rule is, that the plaintiff can only employ his execution to collect his judgment; he cannot use it as an instrument for sheltering or covering the property
This is, we think, the clear result of the adjudged cases. In Lovrick v. Crowden, [8 B. & C. 132,] there was a seizure of goods by the sheriff, and gross delay in the sale, by the direction of the plaintiff; the Court held, that-a subsequent judgment creditor might treat the first execution as fraudulent and void.
In Kempland v. Macauley, [Peake, 66,] a fi. fa. was delivered to the sheriff with directions not to levy until a future day, and in the meantime, another writ was delivered to him; the Court held, that the second writ must be executed as if he had not received the first.
In Kellogg v. Griffin, [17 Johns. 274,] a fi.fa. was delivered to the sheriff, with directions to levy, but not to sell,unless crowded by younger executions; but not to let it lose its preference. The sheriff merely took an inventory; it was held fraudulent and void against an execution issued four months afterwards on a junior judgment.
So when ponderous articles levied on, were permitted to remain with the defendant (as firewood,) which the defendant was permitted to consume; held, fraudulent as against a -junior judgment creditor. [Farrington v. Sinclair, 15 Johns. 428.] So also, if by the direction of the plaintiff, goods are levied on, and suffered to remain with the defendant, for more than a year; [Dickinson v. Cook, 17 ib. 332.]
But to render an execution dormant, or in other woods fraudulent, there must be some act of the plaintiff inconsistent with the pursuit of the defendant by execution to obtain satisfaction of the judgment. Thus, the mere delay of the plaintiff in not compelling the sheriff to levy and sell, will not raise the presumption of fraud, as is shown in Russell v. Gibbs, [5 Cowen, 390] where the previous cases of Whipple v. Foot, [2 Johns.416] and Storm v. Woods, [11 ib. 110,] are cited as asserting the contrary doctrine, and disapproved of. To the same effect are Kerr v. Barber, [3 Cow. 279,] and Benjamin v. Smith, [4 Wend. 332.] And see Doty v. Turner, [8 Johns. 20,] where it was held that to produce this result, there must be instructions from the plaintiff to delay the seizure, or to let the executions sleep in the sheriff’s hands.
We are unable to percieve that the act of Miss Dillard, in directing the sheriff to return the executions a few days before the
Our statute authorising the issuance of another execution, if the first “be not returned and executed,” evidently contemplates that the plaintiff may require the return to be made before the return day. This indeed might be necessary, if the plaintiff wished to send an execution to another county, without incurring the additional expense; and it cannot be supposed that the exercise of this right would involve the loss of all liens acquired under the execution. Our conclusion, then, on this point is, that the mere fact of directing the return to be made before the return day, is not per se, evidence of a fraudulent intent.
The execution of the plaintiff in error, came to the sheriff’s hands, 1st April 1841, and the alias executions of Miss D. notun-til the 19th May, afterwards; but as her executions had not, in contemplation of law, as we have seen, lost their liens by the returns she directed to be made, and were re-issued without the lapse of a term intervening, and before the sale of the property levied on, by the express terms of the statute, [Aik. Dig. 166, § 38,] the liens of her executions are superior to that of the plaintiff in error, at least as to all the property of the defendant, then in Sumter county.
It further appears that some merchandize, the propertyof the defendant in execution, was not brought into the county of Sumter until after the alias executions of Miss Dillard came to the sheriff’s hands.
Independent of our statute regulating the priority of liens between different judgment creditors, we should be inclined to think the legal rights of both creditors in such a case, precisely equal, as the lien of an execution, does not extend beyond the county to
It appears from the record, that after satisfying the executions of Miss Dillard, there was still a surplus in the sheriff’s hands: for this amount the plaintiff was entitled to a judgment, and for the error of the Court, in not rendering judgment for that sum, the.judgment of the Court below must be reversed and the cause remanded.
Concurrence Opinion
I concur in the conclusions expressed by.my brother O&mond.
