Slutter v. Kirkendall ex rel. Brown

Mr. Justice Mercur delivered the opinion of the court,, October 2d 1882. This suit was on a bond executed under the following circumstances. A fi. fa. in favor of the Browns against Slutter was put in the hands of the sheriff the latter part of March; a second fi. fa. against the same defendant in favor of Iiarvey was put in hands ‘ the fore part of April. Both executions were returnable on the second Monday of May then next. On the 30th of April, with both executions in his hands, the sheriff made a levy on the execution in favor of the Browns- upon personal property. Afterwards on the same day the court granted a rule to show cause why the judgment in favor of the Bi’owns should not be opened.and tlie defendant let into a defence ; at the same time ordering “ all proceedings to be stayed — sheriff to be secure in his levy.” The sheriff proceeded no further on this execution, and [312] suffered the property levied on to remain in the possession of the defendant. Some few days thereafter, the precise time is not shown, the bond in suit was executed by the plaintiffs in error. The execution in favor of Ilarvey was also levied on the same property: but at what time the evidence fails to disclose. It is alleged and not denied to have been on the same day the bond was given. On the 16th May the property was sold by the sheriff on the execution of Harvey and purchased by the Browns. The first specification of error is to the rejection of evidence offered to prove, inter alia, that the sheriff obtained possession of the property on the execution of Harvey, on the morning of the sale; that lie retained the money produced by the sale until September following; to be followed by evidence that by consent of the Browns he paid the money on the execution in. favor of Harvey. ■The relevancy of this evidence depends on whether the lien of the levy on the execution of the Browns was divested by the order staying the writ, and the takipg of the bond by the sheriff. If the plaintiffs in the execution had voluntarily agreed to a stay thereof beyond the return day of the writ, their ^Lien would have been postponed to that of a subsequent execution creditor guilty of no laches. This stay, however, was not by act of the plaintiffs in the ■ execution. It was by the court. The order of the latter clearly does not show any intention to disturb the lien of the levy ; but on the contrary to continue it, and make it secure. It is claimed inasmuch as the sheriff took a bond with sureties for the forthcoming of the property or the payment of the execution, that this operated as a discharge of the lien, and the second execution thereupon acquired a preferred right to the proceeds of the sale. We cannot consent to this conclusion. In the language of the court, the purpose of the bond was to make the sheriff “secure in his levy.” It was not to divest or destroy the lien, but to make it firm and steadfast. In Sedgwick’s Appeal, 7 W. & S. 260, it was held that an execution stayed under the Act of 16th July 1842, did not lose its lien upon the personal property levied on. We see no sound reason for holding the effect on the lien to be different when the fi. fa. be stayed by virtue of the command of a statute, than when stayed by virtue of the common law powers vested in th.e court. In either case security is given for the forthcoming of the property: but it is not withdrawn from the custody of the law. Unless there be unreasonable delay in reclaiming the same it is as free from the reach of other processes as if it liad remained continuously in the hands of the sheriff: Hagan v. [313] Lucas, 10 Peters 400. When tbe injunction staying the writ be removed, the property can be sold without a new levy thereon. This property was sold in less than three weeks after the execution in favor of the Browns was ordered to be stayed. There had been no unreasonable delay.in reclaiming it on that execution." When the bond was executed, it declared the property to be in the possession of the defendant in the execution. It was pertinent to prove it so remained, until the day of sale. This was after the return day of each fi. fa. The lien of the execution first in time was no more lost than the lien of the later one. The plaintiffs in the first execution were purchasers at the sale. They had full knowledge of the sum produced thereby, and it must be assumed they knew their right thereto. If they omitted to assert that right, and consented that the money be applied on the later execution, it was the voluntary transfer to ■another of money to which they were entitled.. In equity, it must operate as a payment to them of that amount. The first and seventh assignments are sustained. It may be conceded that the alternative obligation of the bond is greater than the sheriff had a right to require. An obligation to deliver the property when legally demanded, or to pay the value thereof, would have answered the just requirements of the law. The obligors appear to have voluntarily assumed a stronger obligation, and they are bound thereby. It is very probable that the value of the property levied on was admitted to be fully equal to the amount of the execution, and, therefore, the alternative agreement to pay the amount of the execution with costs, was considered of no practical importance. Be that as it may, no cause is shown why the obligors shall not be held to a fulfillment of the obligation which they assumed : People v. Reeder, 25 N. Y. 302; Burrall v. Acker, 23 Wend. 606. The remaining assignments are, therefore, not sustained. Judgment reversed, and a venire facias de novo awarded.