Assigned Estate of Mathews

Opinion, Mr. Justice McCollum : These are appeals from a decree upon an account filed under an assignment for the benefit of creditors. In the account the assignee claimed credits for moneys paid to the sheriff on executions against the assignor, and for moneys expended for clerk hire and other assistance in disposing of a stock of merchandise. To these credits Campbell & Dick, J. Ullman & Co., and Joseph Horne & Co. filed exceptions, on the ground that the expenditures in the conversion of the goods were unnecessary and excessive, and that the judgments which supported the executions were collusive and fraudulent. The fund to which the account relates was produced by a sale of personalty on which the executions were liens at the time of the assignment, and it was agreed between the sheriff, the execution creditors, and the assignee that the latter should sell the property, and pay the proceeds of it to the sheriff to apply on the executions in their order. In strict compliance with this agreement the assignee disposed of the property and ac [144] counted for the moneys received for it. The gross amount of the sales was three thousand dollars less than the face of the executions, and, applied in the order of lien, was not enough to satisfy five of them with their accrued interest and costs. In this connection it should be mentioned that the fund realized from these sales was all that remained for the creditors of the assignor, as his real estate had been sold and its proceeds appropriated to the mortgages and judgments according to their priority. It should also be stated here that it was not claimed by any creditor that the property, real or personal, was sold for less than its value. Upon these facts, it is clear that, if the five executions referred to were valid, neither the general creditors nor the holders of subsequent executions have any standing to contest the expenditures connected with the sale of the personalty. The auditor has found that these executions represented an actual bona-fide indebtedness of the assignor, and that there was no fraud in the confession of the judgments which supported them. The court below has approved the findings, and we think the evidence justifies them. The agreement under which the property was sold by the assignee was valid, and advantageous to all concerned: Kent’s App., 87 Pa. 165. There is nothing in the evidence to justify an inference that the executions were issued for the mere purpose of lien. The directions to the sheriff, under date of January 8, 1887, must be considered together and in connection with the agreement. Besides, as was said by the present Chief Justice, in the case cited: “ This is a matter, however, of which the defendant cannot complain. The execution in such case is good against him. It is postponed only as to purchasers and subsequent execution creditors. An assignee for creditors is not a purchaser. He is a mere volunteer: Ritter v. Brendlinger, 8 P. F. S. 68; Missimer v. Ebersole, reported, ante, page 109. The assignee claims through the assignor. His rights rise no higher. The creditors claim through the assignee. They have his title, nothing more.” The alias fieri facias on the Martha Mathews judgment was not an abandonment of the levy on the prior writ upon the personalty. The property included in that levy had been disposed of when the alias writ was issued; the proceeds of it were appropriated by the agreement under which it was sold, and no execution creditor excepted to the return of the sheriff, [145] or the account of the assignee. It is certain that there was no intention to abandon the levy, and it is clear that the facts do not bring the case within the principle of Missimer v. Ebersole, 87 Pa. 109. It follows from these views that the fund arising from the sale of property by the assignee belonged to the five executions mentioned. It was paid upon them, and whether it was reduced by unnecessary or excessive expenditures in the sale was a matter which only concerned the holders of the executions. We think, as against the parties contesting them, the assignee was entitled to the credits claimed in his account, and that the exceptions thereto should have been dismissed. This conclusion leaves no fund from which to pay the costs of audit, and the parties who made them should bear the burden. The appeals of J. D. Armstrong and Martha S. Mathews are sustained, the exceptions to the assignee’s account are dismissed, and said account is finally confirmed; the decree surcharging the accountant with the sum of $680.50 and distributing the same is reversed, the costs of these appeals to be paid by the appellees. The other appeals from the decree of the court below are dismissed, at the costs of the appellants ; and it is ordered that the costs of audit, to wit, $827.01, be paid by Campbell & Dick, J. Ullman & Co., and Joseph Horne & Co., exceptants. On January 4,1892, a motion for a re-argument was refused.