Atkins's Appeal

The opinion of the court was delivered, February 10th 1868, by Agnew, J. A brief statement of this case will make it clear that this was not a proceeding under the Act of 20th of April 1846, Purd. Dig. 446, and that the court had no power to order a distribution of the proceeds of the several sheriff’s sales without a return of the writs of execution and the money being brought into court. The real estate of John Burnish and others was sold under a levari facias upon a mortgage assigned to Joseph Paxton. Paxton’s administrators by their attorney, Mr. Bannan, received $18,103.59, in full of the debt and interest of that writ. The remainder of the bid, to wit, $37,466.87, was paid to C. M. Atkins, the purchaser at sheriff’s sale, upon a second mortgage held by him under an assignment from the Bloomsburg Iron Company, and Fox & Brother. Had the sheriff made a special return of Atkins’ receipt, together with the certified list of liens, showing that he was entitled to the money, and the court thereupon had, at the instance of the creditors, under their agreement, appointed an auditor to make distribution, the case would have fsillen within the provision of the law, and the objection to the want of the money paid into court would not avail. But such was not the case. C. M. Atkins, Stiehler and Thompson, Allen, Fisher and. the Bloomsburg Iron Company had issued four several writs of fi. fa., upon which the sheriff had levied and sold the personal estate of John Burnish & Co., which produced a fund of $18,663.68. The agreement, under which the auditor, whose report is before us in this appeal, was appointed, was entered into by these four execution creditors, reciting specially their respective writs of fi. fa., by names of parties, number, term and amount of debts. The writ of levari facias, under which the real estate was sold, was neither recited nor referred to, nor were Paxton’s administrators, or Bennett the alleged assignee of the balance of the mortgage, or C. M. Atkins, as owner of the second mortgage or as purchaser, named or referred to in the agreement. The agreement itself proceeds to say that “ the parties in the above cases (to wit, the writs of fi. fa.) agree [92] that, for the purpose of effecting a distribution of. the money arising from the sale of the real and personal property of John Burnish & Company, the money may be considered in court, and all agree that the court may appoint an auditor to make distribution of the money, arising from the sale, to and among the lien-creditors entitled to the same.” In explanation of this agreement it may be said that it was supposed that the real estate had been sold on the writ of the Bloomsburg Iron Company. This, however, was not the fact. There then was an attempt of four execution creditors, who had sold personal property only, to combine a distribution of two independent funds from different kinds of property, part of which had been made upon a writ of levari facias, to which none of them were parties, without the return of the writs by the sheriff or the payment of the money into court, where distribution of one of the funds had been actually made by the sheriff, and where there were outside claimants entitled, as the auditor’s report shows, to come in upon both funds, who were not parties to the agreement. By the auditor’s report it appears that of the $37,466.88, receipted for by C. M. Atkins, on the second mortgage nearly $7000 belong to laborers and other outside parties. This is clearly not a proceeding under the Act of 1846. How can the court enforce this distribution if Atkins refuses to refund the $7000, out of the money receipted for to the sheriff? Can the court, in such a case as this, set aside the sheriff’s deed to him ? This admits of great douht. The court cannot set aside the sale of the personal estate. How can the court enforce the distribution of the proceeds of the personal estate, with the executions not returned and the money not paid in ? How do we know what return the .sheriff might eventually make ? The record exhibits steps taken by him under the Inter-pleader Act. How these may result we do not know, or whether they will in any manner affect the $18,663.68, reported upon by the auditor. If the laborers or others .outside call for their money it is clear the court has it not in custody to award it to them. As to the real estate also, what is to prevent Bennett, the alleged assignee of the residue of the Paxton mortgage, from insisting upon the sale made upon the levari facias, and ruling the sheriff to bring in the money upon his writ. The whole proceeding is most manifestly irregular, and the court is without power to enforce its decree of distribution if confirmed. It is supposed that there is a general practice to make distribution while the money is not paid in, and this must be supported on the ground of general error. If there be such a bad practice the sooner it is abandoned the better. It is directly in the face of what this court said in Williams’s Appeal, 9 Barr 270, recognised in Masser v. Dewart, 10 Wright 536-7. Suppose a sheriff has made a perfectly safe sale, as he thinks, and is forced to return knocked [93] down money not paid, and therefore unsold for want of buyers, what becomes of the proceeding in distribution ? The decree of the court below is clearly erroneous, and is therefore reversed, and all the proceedings to make distribution are quashed and set aside, and the parties to the agreement of July 8th 1864, are ordered to pay the costs.