Bush, Bunn & Co.'s Appeal

The opinion of the court was delivered, July 7th 1870, by Sharswood, J. When money is raised upon an execution and paid into court for distribution, a party who sets up a title adverse to the proceedings cannot come in and claim any share. Thus if the goods of A. are sold upon an execution against B., A. cannot be heard to urge his right to the proceeds, however clear and indisputable may be his title to the goods. An assignee of the defendant by a transfer prior to the levy is an adverse claimant. It is every day’s practice for such an assignee or vendee under a bill [367] of sale to give notice to the sheriff and at the sale, and pursue his remedy either by an action of trespass against the sheriff, if he had actual or constructive possession, or of trover or replevin against his vendee. The assignee of the bankrupt in this case stood in this position. If thebriginal levy under the fieri facias was valid and subsisting, notwithstanding the stay of proceedings, and the venditioni exponas was a regular continuation of the process, he had no right to the money. The lien of the execution of the appellants was prior in date to the commencement of the bankrupt proceedings, and no..question was made as to this being fraudulent. The auditor reports that these liens were unimpeachable. But the assignee contended that they were abandoned and gone by the stay of proceedings returned on the fieri facias, and that the writs of venditioni exponas were irregular and would neither continue nor revive the liens of the fi. fas., their functions having terminated with the stay. So~ the auditor reported, and upon this basis was the decree of distribution in the court below founded. Conceding this to be so, which, however, is done only for argument’s sake, how did the question stand upon the claim of the bankrupt assignee? Either the writs of venditioni exponas were entirely void and passed no title to the goods to the vendee, or the lien started afresh when these writs were placed in the hands of the sheriff. In either alternative the bankrupt assignee had no standing in court. His claim was adverse to the proceedings. He maintains, and the auditor reports, that from the 14th of November, the date of the stay, up to one o’clock of the 16th, when the defendant filed his petition in bankruptcy, the goods were not legally in the cutody of the execution creditors nor of the sheriff for them, and that being the case, the moment the petition was filed the claim of the bankrupt law attached :■ in other words, by relation the title of the goods passed from the defendant and vested in the bankrupt assignee. It is clear then upon his own showing, his claim was adverse; he maintained that the title to the goods sold was not in the defendant, when seized and sold by the sheriff under the venditioni exponas. His remedy therefore was by action against the sheriff’s vendee or the sheriff himself. In Helfrich’s Appeal, 3 Harris 382, it was decided that in the distribution of the proceeds of a sheriff’s sale of real estate, a grantee who claimed the land by conveyance from the defendant in the execution anterior to the judgments against him, is not entitled to the proceeds of sale in preference to the judgment-creditors. If his title is valid it may be set up against the claim of the purchaser at sheriff’s sale. So in Brant’s Appeal, 8 Harris 141, it was laid down that in a case of distribution no question can be made concerning the regularity of the proceedings under which the fund was brought into court, Many other authorities might [368] be cited in illustration and support of these principles; but it is deemed unnecessary to elaborate the subject further. It must not be understood, however, that we hold that in these cases the liens of the original levies were gone by the stay. We intimate no opinion on that point. Prima facie no doubt they would be postponed to subsequent executions: according to Eberle v. Mayer, 1 Rawle 366, and other cases. But it does not follow that this prima facies may not be rebutted by showing that it was not for the purpose of delay and indulgence to the debtor, but in the strict and diligent pursuit of his remedy by the creditor. Thus if on the day of sale an unexpected claim and notice were given calculated to terrify and deter bidders, there would seem good reason for saying that the plaintiff, desirous of taking time to look into the validity of the claim, may order the sheriff either to postpone the sale or to return the writ ‘ stayed,’ and if in the latter case he follows it up promptly by issuing a writ of venditioni exponas, he shall not be held to have lost his original lien. In Lantz v. Worthington, 4 Barr 153, Gribson, C. J., says: “ The legitimate end of an execution is to have the money at the return of the writ or for good reasons set forth in the return, to hold the property for another writ, not to favor the debtor by securely giving him time or a deceptive appearance of ownership.” The other writ here referred to is the venditioni exponas, which issues to command a sale where there has been a previous levy. See Beale v. The Commonwealth, 11 S. & R. 299, s. c. 7 Watts 183; Frisch v. Miller, 5 Barr 310. Decree reversed, and now it is ordered that the fund in court be distributed to the executions of the appellants, and that the record be remitted to the court below, that a decre may be there made according to this opinion.