Sweet v. Williams

Opinion by Mr. Justice McCollum, The fund for distribution was raised by a sheriff’s sale of the personal property of Charles Williams, against whom the Towanda Foundry Company, appellee, held two judgments, and [98] J. T. Sweet, appellant, held one judgment. A portion of the property was levied upon September 11, 1891, on writs of fieri facias on the appellee’s judgments, and on the 3d of March, 1893, writs of venditioni exponas were issued thereon. On the 6th of February, 1893, a pluries fi. fa. was issued on the appellant’s judgment, and by virtue of it all the property was levied on and sold. The appellee expressly disclaims any priority of lien by reason of the levies on the 11th of September, but insists that the whole fund is applicable to its writs issued on the 3d of March because the appellant stayed the fi. fa. and alias fi. fa. on his judgment, and the sheriff did not make a levy by virtue of the pluries fi. fa. before the appellee’s writs came to his hands. The learned auditor concluded that the evidence before him was insufficient to warrant a finding that the pluries fi. fa. was issued for the purpose of lien only, and he accordingly awarded the fund to the appellant; but the learned judge of the court below, being of opinion that such a finding was demanded by the evidence, awarded the fund to the appellee. The sheriff’s return to the preceding writs on the appellant’s judgment constituted the only evidence on this point. From these returns it appears that the appellant consented that the first writ, and directed that the second, should be returned unexecuted. But how did this consent and direction affect the lien of the pluries fi. fa. ? At most they operated as a stay of proceedings on the writs to which they related. They did not authorize an inference that the last writ was for the purpose of lien only. The learned counsel for the appellee concede this in their brief when thej' say: “ Our contention is therefore that while the clearly dilatory purpose of the -first two writs is not to be construed as affecting the validity of the third writ had it been duly prosecuted, yet the -fact that no levy was made under the third writ until the appellee’s executions were in the sheriff’s hands, is to be construed with the history of the original and alias writs, as indicating an attempt to hold security and not to collect a debt.” But there was no evidence that the appellant interfered by word or act with the due execution of the pluries fi. fa. It was a valid writ in the hands of the sheriff, and his rights and duties under it, together with the lien of it upon the property of the defendant, were unaffected by the returns on the prior writs, [99] or the directions of the appellant in respect to them. It was received by the sheriff on the 6th of February and it was returnable on the first of May. By virtue of it the sheriff on the 6th of March levied on all the property on which it became a lien when he received it, and on the 14th of March he sold the same. In this execution of the writ considered by itself there was nothing to charge the appellant with a misuse of it. Manifestly when the pluries fi. fa. was received by the sheriff it became a lien upon the property sold by virtue of it. This much, as we have seen, was conceded by the appellee. It follows that the lien so obtained was not postponed to subsequently acquired liens unless, as the appellee alleges, the appellant interfered in some manner with the execution of the writ. The burden was on the appellee to show such interference. It was not presumed from the alleged delay in making the levy. Affirmative proof of it was required. “ An execution will not be postponed for the officer’s default. His procrastination even by the sufferance of the creditor is not fraudulent per se, and postpones only when the creditor directs him not to proceed : ” McGinnis v. Prieson, 85 Pa. Ill, and cases cited therein. We summarize our conclusions on this branch of the case as follows : The action of the appellant in staj-ing the previous writs did not postpone the lien of the pluries fi. fa. or cast on him the burden of showing that it was issued for the purpose of collecting his judgment. Presumptively it was so issued. Prima facie it was a lien from the time it was received by the sheriff, and in order to postpone it to the subsequent writ it was incumbent on the contesting creditor to show that it was issued or used for a purpose condemned by the law. No act or declaration of the appellant was shown which would justify an inference of such a purpose. While the conclusions above stated and the concession of the appellee in reference to the September levies render it unnecessary to consider the other questions in the case which were discussed by the counsel, it is proper to note that in the distribution among execution creditors of a sum of money realized by a sale of personal property, the money must be appropriated to the writs which were levied on it or the property, to the exclusion of the writs which were not so levied: McClelland v. Slingluff, 7 W. & S. 134; Schuylkill Co.’s Appeal, 30 Pa. 358 [100] and Stroudsburg Bank’s Appeal, 126 Pa. 523. Applying tbia principle to the case before us and relying on the disclaimer of priority founded upon the September levies, we are unable to discover upon what ground the appellee can claim all or any portion of the fund, in view of the fact that its writs issued March 3, 1893, were not levied upon the property or upon the money realized by the sale of it. It may be that the levies made on the appellee’s writs on the 11th of September, 1891, were sufficient as against the defendant to support the writs of venditioni exponas • issued on the 3d of March, 1893, but they were not sufficient to continue the lien on the property against his subsequent execution creditors. As to such creditors it was clearly postponed by the arrangement under which the writs were returned levied, and the defendant in them was allowed eighteen months in which to make payments from time to time on account of them. We are satisfied therefore that the appellee lost nothing by its disclaimer of priority by virtue of these levies. In accordance with the views we have expressed we sustain all the specifications of error. Decree reversed at the cost of the appellee and record remitted to the court below with directions to enter a decree in conformity with this opinion.