Burk, Thomas & Co's. Appeal

Mr. Justice Trunkby delivered the opinion of the court, March 24th 1879. James Van Dyke and B. W. Lane held judgments against J. W. Van Dyke, Lane’s being the posterior liens. On the 16th August 1877, James Van Dyke issued execution, by virtue of which the sheriff levied on the defendant’s personal property and advertised it to be sold on the 29th of same month. Burk, Thomas & Co., on the 24th August, obtained judgment against J. W, Van Dyke, [400] for $220.21, and issued execution, upon which the defendant’s goods were sold, on the 14th of the following month, for $268.80. The sheriff applied $238.28 in satisfaction of their writ and paid the balance to Lane, on an execution he had issued the 25th of August. The day after Burk, Thomas & Co. had obtained judgment and issued execution, they purchased James Yan Dyke’s judgment and ordered the writ returned and levy discharged, for the purpose of securing their junior lien. Upon these facts, in distribution of proceeds of sale of J. W. Yan Dyke’s real estate, the sum of $220.21 of the James Yan Dyke judgment was postponed for the benefit of Lane: and this act is assigned for error. The question is, whether the owner of two judgments, one the first and the other the last lien, with writs and levy of personal property on both, the property remaining in possession of the defendant, may stay the first and release its levy, and secure the last, without postponement of so much of the first judgment as is realized upon the second to an intermediate lien-creditor. It is said that Hunt v. Breading, 12 S. & R. 37, and Dean v. Patton, 13 Id. 341, rule in favor of postponement. The key-note of the opinions in those cases is, that a levy of goods is a satisfaction of the debt to the extent of their value. In the former, after stating the facts, Gibson, J. says, “ It is unnecessary to consider the effect of the rule in equity which compels a creditor who has a security on two funds, to take his satisfaction out of a particular one of them, in favor of a creditor who has a security exclusively on the 'other, as I am Satisfied, on principles of law, that a judgment-creditor who has seized the goods of his debtor in execution, cannot discharge them, and leave his judgment in force as to the'land.” He next considers the “ particular circumstances in the case stated which render it a peculiar one,” and adds, “that such an arrangement would be fraudulent in contemplation of law, I am very much inclined to believe. But the . cause is clearly with the defendant on another ground. Seizing goods in execution to the value of the debt, is a discharge of all responsibility on the part of the debtor, and consequently, a discharge of the judgment, whether the goods be sold or not.” And concludes thus: “ Here the sheriff returned, that he had levied and left the goods in the possession of the debtor, and the judgment must therefore be treated, as having been at one time actually satisfied; * * * consequently, its lien on the land is gone.” He does not pronounce the arrangement fraudulent, though inclined to think it was, nor base his conclusion on any rule in equity in reference to . postponement, or election of a fund, but puts the decision on satisfaction of the debt by reason of the' levy of goods, and upon nothing else. In Dean v. Patton, Duncan, J., with like directness, points to the foundation of the judgment, namely, that Canan, having two judgments against Clarke, on which writs of fieri facias had been issued and returned with levy of goods, and [401] venditioni exponas issued on both, and sale of the goods on both, could not, with Clarke’s consent, authorize the sheriff to apply the proceeds on the second so as to preserve the lien of the first against an intermediate mortgage. It was argued for Canan that the goods sold were not the goods levied on. by the first execution ; and to that it was answered it was not proved, and if it were, it would be equally fatal to his claim for the reason that “ by seizure of the goods the debt was discharged, as far as the value.” The base of that decision was, satisfaction by actual levy and sale of goods on the first judgment, and the dictum, that a debt at law is satisfied by the levy. It would be interesting to trace the transition from the rule, recognised in Hunt v. Breading, to the one now settled in this state, to wit: If an older judgment-creditor sues out a fi. fa. and levies it upon personal property, these acts alone neither pay his debt, nor postpone hi-s lien upon the debtor’s land to that óf a junior judgment. He may leave the goods levied upon in the debtor’s hands: he may release his levy and abandon his fi. fa. without affecting his right as an older lien-creditor, to claim the proceeds of sale of the debtor’s land: Campbell, Bredin & Co.’s Appeal, 8 Casey 88, and cases there cited: The dicta found in a number of cases resting on Hunt v. Breading, would not stand on the present rule. Yet it is as true now as then that, as between distributees, what does not amount to a satisfaction of the debt, as between debtor and creditor, may postpone a prior lien-creditor to a junior one. But postponement must be on other grounds than satisfaction of the debt by a mere levy of goods. Where the goods have been left in the continued possession of the debtor and he has been permitted to use them as his own, and he has lost nothing by the seizure, the levy is no satisfaction of the judgment. The goods were not taken from the defendant on the James Van Dyke execution. He lost nothing by the levy on that writ, and the plaintiff realized nothing. James Van Dyke, had he not sold his judgment, could have stayed his writ and discharged the levy without danger of postponement of lien on real estate. He lawfully assigned the judgment to Burk, Thomas & Co., junior creditors, and they had a right to do with it what he could have rightfully done. Burk, Thomas & Co. violated no rule of ethics in the fair and vigilant use of means for collection of their debt; and the obtaining judgment and immediate issue of a fieri facias present no appearance of wrong. Lane could have issued his execution as well before as after; and his delay is no especial merit requiring compensation for what he lost by it. There is neither proof nor cause for pretence that he was circumvented. No artifice delayed him in issuing his writ. The auditor does not find that Burk, Thomas & Co. practised deceit or -collusion, and he returns no evidence that they did. Must they forbear the use of legal process in tenderness [402] to an intermediate sleeping lien-creditor ? The law does not forbid her remedies to one seeking to collect his due, but rather sanctions their use by aiding the wakeful creditor who commits no fraud. So much of the decree as postpones the sum of $220.21, and interest thereon from September 14th 1877, of judgment No. 270, September Term 1873, now for use of Burk, Thomas & Co., is reversed; and it is now considered and adjudged that the full amount of said judgment and its interest be allowed, and distribution be corrected accordingly. Costs to be paid by appellees.