Pentland v. Kelly

*484 The opinion of the Court was delivered by Rogers, J.

In the 6th section of the Act of the 13th October 1840, it is enacted that wherever an estate for life in any improved lands or tenements yielding rents, issues and profits, shall hereafter be taken in execution, the court shall upon the application of a lien creditor, award a writ to sequester the rents, issues and profits of such estate, and appoint a sequestrator to carry the same into effect. The 7th section prescribes the duty of the sequestrator, and the 8th section gives the court the power to exact security and to compel him to the due and faithful performance of his duty. The Act is carefully guarded, highly remedial, and is calculated and was so intended by the Legislature, to protect the interest of the owner of the life estate as well as lien creditors from the ruinous sacrifices, which, it is very well known, too often result from the sale of such estates by the sheriff. The question here’ is whether the mechanics’ lien comes within the salutary provisions of the Act, or whether such creditors are still at liberty to pursue the former method, and by a judicial and forced sale jeopard if not destroy the rights af all others who have an interest in such estate. For this exemption I see no warrant either in the letter or the general policy of the Legislature. It cannot be doubted that the levari facias, which is substituted for the fi.fa., inquisition and venditioni in the case of the mechanics’ lien, is an execution. It is so called by the commissioners in their report, and is process to collect the debt, and is therefore in legal as well as popular parlance an execution. An execution, in the usual legal sense of the word, is a judicial writ grounded on the judgment of the court from which it issues; and is supposed to be granted by the court at the request of the party at whose suit it is issued, to give him satisfaction on his judgment. The levari facias is expressly enumerated among the species of execution in Jacob’s Law Dictionary, and is defined to be a writ of execution directed to the sheriff for levying a sum of money upon a man’s lands, tenements, goods and chattels.

As the mechanics’ lien is within the letter it is equally plain it is within the spirit of the act; for the sacrifice of property will be the result, whether the execution be issued by a creditor of this description or by any other creditor. It is true that a desire has been evinced to favour this class of creditors by lessening the expense and expediting their remedy; but we must take care to avoid effecting this object, although a meritorious one, by the sacrifice of every person else. They may in some cases be put to a temporary inconvenience, but as their money will be ultimately safe, they themselves will often profit by the increased price which may be obtained for the property by the sequestrator, who may choose his time for the sale and may sell it in his discretion either at a public or private sale, or may pay the debts out of the rents, issues and profits. The Act is imperative. It directs that the *485 court shall, on the application of lien creditors, award a writ to sequester the rents. As the Act contains no distinction as to the kind of creditor who may make the application, we do not feel inclined to make any exemptions from what apears to us a wholesome construction of the Act, by doubtful and strained inference. It is uncertain, as this case stands, whether the writ of sequestration was issued before or after the levan, nor is it material, as the application, which the court is bound to grant, may be made at any time before the sale. Of the provisions of this Act, which is grounded on general policy, no persons can complain, except those who are desirous of speculating on the misfortunes of their neighbours. And this it has been the object of the Legislature to prevent. The sequestrator has ample power to do right and justice to all the creditors according to the priority of their respective liens. So also, when the interest of the creditors requires it, the court may compel the sequestrator to perform his duty, of which, of course, they must be the ultimate judges. As by a change in the Act of the 28th April 1840, the lien binds only the interest of the person at whose instance the building was erected, and as in the case before us it was a life estate, it is a proper case for the appointment of a sequestrator.

Judgment reversed.