Wood v. Vanarsdale

The opinion of the eourt was delivered by Kennedy, J.

This case is considered as falling within the principle decided by this court in the case of Hunt v. Breading, 12 Serg. & Rawle, 37 .

On the 20th of November, 1827, Richard Rowley, issued a fieri facias upon his judgment of fourteen hundred and eighty three dollars, and seventy five cents, against Vanarsdale, with directions to the sheriff, to levy the second instalment, or one third of the amount of the judgment which had become payable, the first instalment having been paid. This writ of fieri facias was put into the hands of the sheriff to whom if was directed on the same day. He immediately called at the store of the defendant in the execution; told him of its being in his hands, and the defendant signifying no disposition to pay it, he made a levy upon the goods in the store, of more than a value sufficient to satisfy the amount of the execution, of which he gave the defendant notice. He also levied upon some part <of the defendant’s household furniture, of which he made an inventory, but made no inventory of the goods levied on in the store; nor did he remove any of them. The plaintiff upon the sheriff’s telling him what he had done, told him that he need not remove the goods without further orders. .The sheriff did not shut .up the store, nor did he put any one in possession of it. After the sheriff made this

*404 levy, the defendant in the execution, upon the 2nd day of November, made an assignment by deed of ail his property, including the goods levied on, to Thomas C. Maybury and Joseph L. Moss, in trust for the payment of his creditors therein mentioned. Maybury and Moss were among the number provided for by the deed of assignment, and on the 26th of the same month paid to the sheriff the amount of the execution, and he paid it over to the plaintiff’s attorney. After-wards, on the 29th of the month, the plaintiff’s attorney, at the solicitation of Maybury, or his attorney Mr. Randall, assigned the judgment so far as it had been paid by Maybury, to him, and he again assigned it to John Moss, the father of Joseph L. Moss. Rowley’s attorney, however, told Maybury or his attorney, at the time he made the assignment, it would do him no good, and it must be understood that it was not to prejudice his client Rowley in the collection of what was still owing to him. After this Mr. Randall, as the attorney of Maybury or Moss, without any regard to the levy which had been made on the goods under the execution, directed the sheriff to levy on the real estate of the defendant Vanarsdale; and he accordingly did so, and made return of the same, but no return of the levy upon the goods. The real estate was afterwards sold upon another execution at the suit of Wood for nine thousand six hundred and seventy five dollars, a sum not sufficient to pay the whole of the balance coming to Rowley upon his two judgments and the prior liens.

Vanarsdale was displeased with Rowley for issuing his execution, and told the sheriff when he informed him of it, that if he had known that Rowley intended doing so, he would have prevented him from getting any of his personal property, for he would have made an assignment of it for the purpose of satisfying some of his creditors. Rowley by issuing his execution as he did, secured the payment of the second instalment which had become payable upon his judgment against Vanarsdale out of the defendant’s personal estate, and thereby made the real estate the better security for the residue of that, and the amount of his other judgment of ten hundred and thirty-one dollars and forty-seven cents, which had some months then to run before execution could be issued. Maybury was interested in making the most out of the property which had been assigned to him and Moss by Vanarsdale that he might get payment of his debt. It is therefore easy to see the motive which he had for paying the money coming to Rowley upon his execution. The property assigned to Maybury was bound for the payment of Rowley’s execution, and to prevent a sacrifice of it and ail further interference with it by the sheriff, he paid the execution. He could be no loser by doing so, as the personal property liable to the execution was of much more value than the amount of it, and he would have a right to reimburse himself the amount of the money paid to the sheriff out of the first moneys that should arise from the sale of the goods to be made by him. This money was not paid to the sheriff, as has been contended by Moss’s counsel, under an agreement that Maybury should have the judg *405 ment to the amount of the execution assigned to him ás a security for obtaining a reimbursement of the money. On the contrary, it appears to have been paid in order to prevent a sale of any of the goods being made by the sheriff, who told them before the payment of the money and after the levy, that unless it were, paid he would proceed to make it by sale of the property; and upon this it was paid without even the presence of the plaintiff in the execution or his attorney, or any stipulation for an assignment. The assignment was not made until three days afterwards, when it was done as already mentioned, at the request of Maybury's attorney. There is every reason to believe that Rowley wished to have as much of his claim against Vanarsdale paid out of his personal property as he could, and thus improve the security which he had upon the real estate for the balance. No doubt this was his principal reason for issuing his execution, and it is therefore not likely that Rowley would have consented to have taken his money, for which he issued the execution, and have assigned so much of the judgment, keeping it still open and continuing it as a lien upon the real estate of the defendant. He does not appear to have ever given his assent to any such arrangement. Nor do I understand that even his attorney agreed to it as now claimed upon the part of the assignee. I consider the money then paid to the sheriff, as paid in satisfaqtion of the execution, and that the judgment upon which it was issued was thereby satisfied pro tanto, and no subsequent assignment made by Rowley's attorney without an authority from him to do so, could resuscitate this satisfied and extinguished part of the judgment to the prejudice of Rowley’s rights. An agreement for this purpose entered into between Rowley, Vanarsdale and Maybury, might have been sufficient, but certainly not without Roioley's consent or authority could his right to have the execution satisfied out of the personal property, and the real estate of the defendant relieved from so much of his claim, be set aside and thrown back again upon the real estate which was not of sufficient value to satisfy the balance of Rowlefs judgments. Even if there had been no levy upon the store' goods of the defendant in the execution, I consider the payment of the money a satisfaction of the execution, and an extinguishment of the lien of the judgment for so much, and that the decision of the court on the appropriation of the money arising from the real estate, was right and ought to be affirmed.

But I also think there was a levy on the goods of Vanarsdale in this case sufficient to bind Maybury. To constitute a levy upon personal property it is not necessary that there should first be an inventory of it made out; nor is it necessary, perhaps, in all cases, that an inventory should be made out at any time. Neither is if necessary that the sheriff should remove the goods levied on immediately ; nor that he put a person in every case, immediately into the possession of them; a reasonable time must be allowed for this, which may be more or less, to be judged of according to attending circumstances. A levy, however, upon such property, cannot be made without the *406 sheriff has it within his power and control, or at least within his view; and if having it so, he makes a levy upon it, it will be good if followed up .afterwards within a reasonable time, by his taking possession in such manner as to apprise every body of the fact of its having been taken in execution. The sheriff in this case was in the store, when he made the levy upon the goods, having them full in his view, and completely within his power. Immediately after this was done, within a day or two, Maybury, with full knowledge of the levy, took an assignment of the goods from Vanarsdale, and before the sheriff had had time sufficient to have made out an inventory, and then when the sheriff talked of proceeding with his levy to consummate it, and make a sale, unless the money were paid, Maybury proposed paying the money, and in two or three days afterwards actually did pay it, so that he prevented the sheriff from making an inventory, and taking possession of the ‘ goods, which we may presume would have been done, if Maybury had not interfered as he did. Under these circumstances, if Rowley, the plaintiff in the execution, had even agreed to have assigned to Maybury his second instalment due upon the judgment for which he had, issued the execution, upon Maybury's paying the amount of it to him, and the arrangement had been carried into effect, without any stipulation or agreement that Maybury should be at liberty to change the levy from the personal to the real estate of the defendant in the execution, I think that Maybury could not have done so. The course which Rowley intended pursuing, was against the personal property ; this was clearly and unequivocally indicated, and commenced by the sheriff under the execution, and all made known to Maybury; and under an assignment, without more to him, he would have been bound by what Rowley had caused to be done, and to complete that, and obtain the fruits of it, was all that it could have been said was assigned to him. The levy, in short, was a satisfaction of the judgment, and the assignment at most could only give to Maybury the benefit and fruits of the levy. Hence he was not at liberty to relinquish the levy on the personal estate, and to apply that personal estate under the assignment which he had from Vanarsdale to the payment of his own debt against Vanarsdale for which he had no lien upon Vanarsdale's real estate, or if he had any it was subsequent to Rowley’s, and to seek satisfaction of the execution assigned to him, out of Vanarsdale’s real estate. This view of the case assimilates it to the case of Hunt v. Breading, 12 Serg. & Rawle, 37 . But it is said that the levy on personal property in the case of Hunt v. Breading, was returned by the sheriff and was afterwards set aside by the agreement of the defendant in the execution, and the plaintiff and Hunt , to the prejudice of Breading . The return of the levy can make no difference, as appears by the decision of the Supreme Court of New York in the case of Wood v. Torry, 6 Wendall, 562.

The judgment of the court below is affirmed.