Earl's Appeal

[485] The opinion of the court was delivered by Coulter, J. Directness and plainness in the conduct of business affairs contributes much to the certainty and fairness of their adjustment; whilst complication and unnecessary interweaving of one transaction with another does greatly embarrass the judicial application of statutory and just principles to each. If the leading features of the act of 1886, concerning executions, were fully carried out regardless of former and sometimes conflicting decisions in relation to the law and priority of levies on personal property, the duties of sheriffs and the rights of parties with regard to conflicting executions would be disentangled, and much litigation and difficulty avoided. Every execution of fi. fa. would then stand alone, and on its own merits, neither bearing upon nor influenced by the conduct of the sheriff, in regard to another. Each execution creditor ought to look to the officer for a faithful execution of his process, according to the terms of his writ and the statute; and if he proceeded not according to those terms, then he should look to him alone. But if instead of that he choose to depart from the law either by permissive, collusive assent, or positive direction, so as to obstruct and hinder a subsequent execution in the hands of the sheriff, he ought to be postponed. There is no doubt but that a fi. fa. binds all the defendant’s personal property in the bailiwick, from the time it is put into the sheriff’s hands. Yet the object of the law is not to secure a continuing lien in favor of the execution creditor, but to enable him to obstruct fraudulent transfers by the debtor, and to secure his debt by a levy and sale of property, fraudulently or illegally transferred to defeat the execution. This court has often asserted the principle that a prior execution would be postponed to a subsequent one, if the former was put into the hands of the officer for the purpose of lien and not for the Iona fide purpose of making the money according to law. It seems to me that such a levy as that of the prior execution, in this case to wit, Shenfelder’s, if finally validated, would enable parties collusively to cover property in evasion of the statute and that class of decisions to which I have referred. The levy was upon certain articles and all the rest of defendant’s goods and chattels. This fi. fa. was issued on the 28th February, 1849, returnable to April term, of same year, and remained in the sheriff’s pocket or his drawer with its levy until June, when by stress of other executions returnable to August term, on all of which he endorsed the same levy as on Shenfelder’s, and on each subject to prior executions, he was forced, to sell. Here was no notice to other creditors of the levy on Shenfelder’s fi. fa. even in gross. If they saw a record of its being issued, and no return, they might well suppose it was.abandoned, lost or paid. Now, although the sheriff in-'his testimony says, that Shenfelder did not tell him to stay proceedings, that he never said any [486] tiling to Mm about Ms execution; he did it therefore out of his own head, and thereby made himself liable to Shenfelder. But what is it to subsequent execution creditors as it regards their, rights, whether this concealed covering of property is effected by direction of the plaintiff, or the wilfulness of the sheriff. If by the latter the plaintiff has his remedy against him for not proceeding, to sell according to the exigency of Ms writ, and therefore suffers no loss. But we cannot shut our eyes to the fact that Shenfelder’s execution was suffered by him to run over its return day, more than two months, and that for the whole period of five months during which it was in the sheriff’s hands, Shenfelder saw the defendant proceeding with his business as usual in his shop, selling the very articles that would have been bound by his execution, and often was there, and never said anything to the sheriff, as he says, until the sale was about being made, and then inquired if his execution was not the first. This gives a clue to the whole transaction. Actions sometimes speak as loud and as intelligibly as words. The sheriff says in his testimony, as an excuse for not selling before the return day, of Shenfelder’s fi. fa., that Pawley requested him not to do it, and told him that Shenfelder did not want to break him up. The silent acquiescence of Shenfelder, his permissive and collusive approbation of the sale by Paivley of the very articles bound by his execution, whilst others were acquired after the return day, which were not legally bound, give a solution of the main point in the case, and satisfactorily establish that his object was lien, and that he did not put his execution into the hands of the sheriff, with a bona fide intent that ho should proceed, and make the money according to law. But the 41st sec. of the act of 16th June, 1836, provides, that the officer to whom the writ is directed shall, if the defendant neglect or refuse to pay the debt and costs, proceed to levy and sell so mueh of the defendant’s personal estate as shall be sufficient for that purpose, and make return of his proceedings to the court according to the command of his writ. Here are plain directions easily followed, and we are not to presume that the sheriff departed from them without other instructions, impliedly if not positively given in the face of the facts of this case. The direction is not that the officer shall levy on all the defendant’s personal estate, but only on so much as will satisfy the debt and costs. He would not of course be bound to fractional exactness, but would be entitled to a liberal latitude. But still he ought to make a schedule in justice to the defendant, the plaintiff, and subsequent execution creditors. The officer has another duty to perform after levy, and that is to sell, after six days public .notice. If the plaintiff does not want hfé money, made he need not issue Ms execution. If he merely wants a lien, and to exclude other creditors, the law interdicts him.— And that which the plaintiff cannot lawfully do in this respect, the [487] officer cannot lawfully do of Ms own head. The law ought to govern when its provisions are so plain and direct, because that is made with a due regard to the rights of all, and it is seldom elongated or abridged, without infringing upon the rights of some, and perhaps the most meritorious of the parties. A sheriff who made a schedule, would evince thereby that he had the goods in his vision and power, and would give notice to subsequent execution creditors. But such a levy as this might be made by the sheriff or his officer, and is therefore of dangerous precedent. There are cases where every article could not and need not be specified, on account of their variety and minuteness, such as a store; but then the levy would be on the bulk, and sufficiently descriptive in that, because it would describe the thing. We cannot give precedence to Shenfelder’s execution under all the circumstances of the case, but think it ought to be postponed. The decree and distribution of the court below is reversed, and it is ordered that the money be distributed according to the report of the commissioner, as follows, to wit: Amount in the hands of sheriff, $1897 97 From which deduct commissioner’s charge, $30 00 “ Prothonotary for list of judgments, 1 50 Do copy of app’t. 34 31 84 Amount to be distributed, $1866 13 This sum of $1866 13, in the hands of the sheriff to be distributed in the following manner:— 1. To Asaph Shenfelder, for rent, from the 1st day of January 1849, to the 2d June, 1849, the date of levy on J. S. Bichards’ execution, $94 37|-. 2. To John S. Bichards, on .the execution J. S. Bichards vs. Morris Pawly, fi. fa. to August T. 1849, No. 65. Debt, . $329 30 Int. from May 16, 1849, to June 27, 1849, day of sale, 2 31 $331 61 3. To Edmund W. Earl, on execution E. W. Earl vs. Morris Pawly, fi. fa. to August T. 1849, No. 77, balance of debt, $1300 00 Int. from May,9,1849, to June 27, ’49, 10 40 $1310 40 4. To Augustus Boas, on execution Augustus Boas vs. Morris Pawly, fi. fa. to August term, 1849, No. 80. The balance remaining in hands of sheriff after payment of the above, to wit, the sum of $129 74J.