Appeal of Roberts & Son

Mr. Justice Gordon delivered the opinion of the court, October 5th, 1885. The contention in this case arises on the distribution of a fund raised from the sale of a certain leasehold interest in a tract of some sixty acres of land in Mead township, Warren county, having upon it three oil wells, with their appurtenances, which was taken in execution and sold as the property of Thomas Kervin, at the suit of the appellants, W. B. Roberts & Son. The amount thus made was not sufficient, after deducting costs and paying other liens, to cover the plaintiff’s writ. Patrick Kervin, a brother of the defendant, interposed a claim of three hundred dollars, for wages, under the Act of the 9th of April, 1872, on account of labor performed on the 328 said premises. The Auditor, to whom the ease was referred, sustained two hundred dollars of this claim, and awarded to it a pro rata percentage with other liens upon the fund. To this award exceptions were filed by the appellants, but their exceptions were dismissed in the court below, the report confirmed, and an appeal taken to this court. Whilst these labor claims are, as a class, meritorious, and to be favored as far as possible, yet we must not forget that they depend for their validity altogether on the legislative provisions in which they originated. A laborer must bring himself within those provisions or he cannot have a preference over other creditors. Kervin has not done so; he has brought himself neither within the letter . nor the spirit of the Act of 1872. It is to the notice that we must look for the extent and character of the wages claim, and when from it we find that a case under the Act has not been made out, we need inquire no farther. Kervin, in his notice to the sheriff, claims three hundred dollars out of any moneys that may be raised from the sale of the leasehold of Thomas Kervin, on account of work and labor performed for S. M. Reid. How the property of Thomas Kervin was to be made answerable for the debt of S. M. Reid, the sheriff, and those interested, were not informed. From evidence, extra the notice, we discover that Reid was the assignee of Kervin, and that the work set forth in the claim was not done until after the levy on the appellants’ writ. Thus, neither by the notice nor by the oral testimony is this claim brought within the provisions of the Statute. Not by the notice, because the work does not appear to have been done for the lessee, but for another person. Not by the evidence, because if Kervin, the claimant, was employed by the assignee, it was the business of the assignee to pay him, and charge the amount thus paid, in his account as part of the expenses incident to the administration of the trust, but his liability to the laborer, whom he had employed, was as much personal as though he had employed him about his own business. It follows that the claim could not be charged over to that part of the assignor’s estate which was, previously to the assignment, in the possession of the sheriff for the use of the owners of the writs. Neither the debtor nor his assignee could thus charge that property. The decree of the Court of Common Pleas is now reversed and set aside, at the cost of the appellee, so far as distribution was made to the claim of Patrick Kervin, and as to that amount redistribution is ordered.