Michie v. Planters' Bank

Mr. Justice Trotter delivered the opinion of the court. By the common law, a judgment creditor acquired a lien upon the goods of the defendant from the teste of the writ offieri facias. The act of the 29th Charles 2, gives the lien from the time of the delivery of the writ to the sheriff. It has always been held, however, in England, that if two writs are delivered, and the sheriff shall execute the one bearing teste the last day, or the one last delivered, such execution shall not be avoided, but the plaintiff improperly postponed shall have his remedy against the sheriff only, who is bound to do his duty at his peril. The property in the goods is bound by the sale, and cannot be seized by the elder execution. The reason is, that sales made by the sheriff ought not to be defeated, for if they are, no man will buy goods levied upon a writ of execution. Such was the language of Lord Holt, in the case of Smallcomb v. Cross & Buckingham, Ld. Raym. 252. The language of the statute 29th Charles is, that the goods of the defendant shall be “bound from the delivery of the writ to the sheriff.” In the case of Lowland v. Tomkins, 2 Eq. Cas. Abr. 381, Lord Hardwicke has given the same construction to these words of the statute, that Lord Holt has in the case of Smallcomb v. Buckingham, just noticed. He says that neither at common law, [139] nor since the statute is the property of the goods altered. This doctrine is sanctioned by the Court of King’s Bench, in the case of Payne v. Drew, 4th East, 539, in which it is declared to be a well settled principle, that a sale by a sheriff under a second execution, when he had a former one in his hands, is valid and vests the property in the purchaser. That though the writ is binding as against the defendant from delivery, yet it cannot be regarded as self-executed by its own proper force and legal effect for all purposes. That whilst it is the duty of the sheriff as between himself and the several plaintiffs to sell under the writ first delivered, though he may have seized under the last; yet his sale under the junior writ is good. The court of appeals of Kentucky have established the same rule in the case of Tabbs v. Harris, 4th Bibb, 29, in the construction of a statute of that state, similar to the act of Charles. In that case, the money in the hands of the sheriff was levied upon Tabb’s execution, though it was delivered after Harris’s, yet the court ordered it to be applied to Tabb’s execution. The act of 1822 of this state is exactly like the statute of Charles, and is therefore subject to the same construction. It is, tiherefore, beyond controversy, that the lien in favor of judgment creditors either at common law, or since our act of 1822, does not bind against other judgment creditors, but may be defeated or lose its priority by a sale under a junior execution. But the act of 1824 binds the property of the defendant from the time of entering the judgment, and it is urged by the counsel for the appellees that the analogy of the decisions in relation to the English statute, does not apply to a lien by virtue of a judgment. That in consequence a sale under the junior judgment is void as against an elder one, and that the property is still subject to be seized in satisfaction of the prior judgment. Be this, however, as it may, it is very eviident that the lien created by this statute is, in one respect, similar to that given by the act of 1822, it may lose its priority by the act of the creditor himself. The lien after all is but a security, and whether that which is created by the act of 1824 binds all the world or not, it is still as a mere security, to be pursued with diligence and in good faith. When therefore the law gives to a prior judgment a right to a prior satisfaction, it intends that this favor shall be pursued with [140] as little del'áy oí- injury tó other creditors as possible. It may be lost by laches. Has the Bank pursued its remedy in this case with the diligence thus required by law and sound policy? The letter of the attorney to the sheriff which was authorised by a resolution of the directory of the Bank, was an instruction to the sheriff to stay the execution, if not for an indefinite period, at any rate for six months. He is directed to return the writ then in his hands to the succeeding court, and afterwards to take out a hew one, which might be suspended in like manner until the next court afterwards, faith the same consent. This was not only an agreement to stay the execution then in the hands of the officer, but is an Undoubted promise to suspend thé next 'in the same manner. This is surely a much stronger case than that of Porter’s lessee v. Thomas Cocke, Peck’s Rep. 30, in which the lien of the elder judgment was postponed. In that case the execution on the senior judgment waS levied on land of the defendant. An injunction was obtained, and after its dissolution the plaintiff agreed with the defendant, in consideration of a partial payment of the judgment, ‘to stay the 'execution six months. In the mean time an execution on a junior judgment came to the hands of the 'sheriff, under which he sold. It was held that the lien of the first judgment wus defeated as against the other judgment creditor, and the sale was held'to be valid. If, says the judge who delivered the opinion of the court, the plaintiff máy delay the collection of his judgment six months, and retain his lien, to what time may he not extend it. In the case of Payne v. Drew, before noticed, the court held that a sequestration which bound the goods had lost its priority by reason of the laches of the sequestrators in delaying to execute the writ for eighteen months, afid it was so held upon principles of public convenience and to prevent fraud and vexatious delay. It is again emphatically asked by the judge in that case, «if the sequestration was not enforced within the eighteen months, at what period was it expected that it would.” The judgment of the court is put upon the simple ground of delay and negligence. The sequestration had been in the hands of the sequestrators for the eighteen months when the writ of fieri facias was delivered to the sheriff. The intention in the delay was not made a sub [141] ject of inquiry. The writ of sequestration became dormant and therefore lost its lien. In the case of Whipple v. Foot, 2 John. Rep. 216, it was held that if the sheriff, by directions from the plaintiff, suffer goods which have been levied upon, to remain in the possession of the defendant, it is a fraud upon other creditors, and the execution becomes dormant. The same point is settled in the case of Storm v. Woods, 11 John. Rep. 110. The same is held in several other cases in New York. If the lien created by the law in this case be merely a security, and confers no jus ad rem, it may be lost by any agreement or act of the judgment creditor, which would discharge the liability of a surety, under an ordinary contract. It has been decided that where the creditor* by agreement with the principal debtor, enlarges the time of payment without the consent of the surety, the latter is discharged. 3 Mer. Rep. 278. It would be rephgnant to every principle of sound policy, and open the broadest avenues to fraud and injustice, to hold that the lien in favor of judgment or other creditors may be enforced at the mere option of the party, or that it may keep off other creditors equally meritorious., without any step to preserve it. We are therefore of the opinion that the agreement of the Bank in this case, rendered the execution in its favour dormant, as against the claim of Michie, and that he is entitled to the money levied on his execution. The judgment of the court below must be reversed, and judgment rendered here, that the sheriff pay'the money accordingly.