Miller v. Westerhoff

Opinion by Oblady, J., The plaintiff sued to recover the sum of $250 which was the price of an engine, boiler, hangers and pulleys that had been sold and delivered by him to the defendants, who resisted payment on the ground that at the time of the alleged sale it Avas distinctly understood that unless the plaintiff had a clear title to the property they would not buy it at any price, and that it had been established afterwards that the plaintiff did not have any title thereto. On the trial it appeared that Hiram Mes-singer issued a writ of fieri facias to No. 46, November term, 1894, on a judgment he had against J. M. Krick. Jacob Wolf issued a writ of fieri facias to No. 47, November term, 1894, on [609] a judgment he had against the same defendant. The levy on fi. fa. No. 46, which was issued September 24, was indorsed on the writ as follows: “ September 24, 1894, on shafting and pulleys, one caramel cutter, stick, machine rollers, two fans, rock, six tables, seventeen trays on third floor, mixing tank, two milk tanks, engine and boiler, pump, shafting, etc., levied on as per property of J. M. Krick.” On fi. fa. No. 47, which was issued September 25, the indorsement is “ levied September 27, 1894, on 42,500 cigars, 100 lbs. scrap, 1,000 Spanish, 150 pounds Little Dutch, 50 pounds binders, 18 pounds smoking tobacco, 1 lot chewing tobacco, 65 sets blocks, 2 presses, 1 heater, set harness, fly net, carriage, bunching machine, household and kitchen furniture, etc., levied as personal property of J. M. Krick.” From these indorsements on the writs of fi. fa. it is clear that, at the time the sheriff indorsed his levy upon writ No. 47, he hadan actual levy on the engine and boiler by virtue of his seizure of these items under writ No. 46. A sheriff having two or more executions in his hands, seizes goods; this is the levy; he is not required to make a separate schedule for each. He may make the list on one execution and refer to it in his return on the others. The levy, however, all the time is on all the executions, if it is so made and so expressed to be at the time it was made : McCormick v. Miller, 3 P. & W. 230. If a second fi. fa. be delivered to a sheriff after he has the defendant’s goods in possession under the prior fi. fa. the goods are bound by the second execution, subject to the first from the date of the delivery of the last writ. In contemplation of law, he is deemed (unless it appears to be clearly otherwise) to have seized under the second writ, the same pi’operty that was seized under the first, and not merely the surplus, from the time the second writ comes to his hands, or at any rate, from the time he indorses the seizure: Watmough v. Francis, 7 Pa. 206; Winegardner v. Hafer, 15 Pa. 144. When the sheriff levies on a specific article or articles, naming them, without more he will be confined to his levy; as for example where he levies on a horse, he will not be permitted to sell a cow, or other article of property. But not so when words are added as very plainly indicating his intention to include other property, although not specifically named or. enumerated ; and in this consists the distinction: Wilson Sieger & Co.’s Appeal, [610] 13 Pa. 426. The language of the levy is sufficiently broad and comprehensive in the et ceteras, to have justified the sheriff in selling on writ No. 47, all of the defendant’s personal property, not exempted by law : Schuylkill County’s Appeal, 30 Pa. 358; Weidersaul v. Reynolds, 49 Pa. 73 ; Dixon v. Sewing Machine Co., 128 Pa. 397; Sweet v. Williams, 162 Pa. 94. On September 29, Messinger gave notice to the sheriff in writing that “the engine, water tube boiler, fittings and pipings for the same, levied upon by virtue of fi. fa. No. 46, as the property of J. M. Krick was not the property of J. M. Krick at the time the execution and levy was made, but was at that time the property of the plaintiff, Hiram Messinger.” The Messinger writ was stayed by order of the court, though the reason for this action is not given. On October 8, following, the sheriff presented his interpleader petition to the court of common pleas, praying for a rule on Messinger and Clementine L. Krick, who claimed certain household goods, to appear and maintain or relinquish their respective claims to the property on which he had levied. Messinger was served with” this rule but did not appear and a writ of venditioni exponas, reciting the Wolf judgment, the levy on the engine, boiler, etc., the claim of Messinger to the property and his neglect to appear and maintain his claim, was then issued to No. 110, April term, 1897, on which writ, the property was sold by the sheriff and delivered to the purchaser. The only question in the case is the validity of the levy on the engine, boiler, etc., under writ No. 47, which was disposed of correctly by the learned trial judge. The fact that the earlier writ was stayed did not affect the levy on another writ which was at that time in the sheriff’s hands and on which the levy was noted. It was complete as to each writ and was so recognized by the sheriff when he petitioned, under both writs, for an interpleader, and scheduled this identical property as having been levied upon by him as the property of Krick but claimed by Messinger. The sale under the vend. ex. divested the title of Krick, and, for the purpose of. this case, as effectually disposed of the claim of Messinger. The location of the property had not been changed from the time of the first levy, and Messinger’s attempt to perpetuate his claim to it, through the name of the plaintiff, so [611] as to sell it to the defendants cannot avail against them after they were obliged to surrender it to the sheriff’s vendee. The several writs were properly received in evidence to show that Miller did not have title to the property when it was sold to the defendants. The notice to the sheriff was a suspicious item of proof for the purpose of showing Messinger’s assertion of title to the same property, while he acted for the plaintiff in negotiating this sale. The exact condition of affairs is shown to have been known by Messinger. Through the plaintiff’s failure to make good his title to the property, the defendants lost the fruit of their attempted purchase and when it was taken from them by the sheriff’s vendee they had a complete defense to the plaintiff’s claim for the purchase money. The judgment is affirmed.