Harding v. Stevenson , 6 H. & J. 264 ( 1824 )

The opinion of the court was delivered by

Buchanan, Ch. J.

In seeking to sustain this suit, it has been contended by the counsel on the part of the plaintiff,' that, as Hugh Boyle, on the 17th of December, in the year 1817, when he executed the deed to David Winchester, intended to take the benefit of the in&'olvent laws of the state, and did, on the 31st of the same month, make’ application, and ultimately obtained á final félpase, the deed to Winchester, finder the operation of the first section bf the act of 1812, ch. 77, becfime null and Void, and the molasses, thereby intended to be transferred,' liable to' seizure and sale by the defendant, in virtue of the writ of fieri facias then in his hands, which had been before issued upon the judgment obtained by the plaintiff against Boyle: But they are met at the" threshold by the decision of this Court in Kennedy vs. Boggs, where ■ it was held, that a transfer of property by a debtor to a creditor, with a view, or under' the' expectation of bécoming an insolvent debtor,' is made void by that act only for the purpose of vesting the property in the'trustee of such debtor, for the benefit of his general creditors. And it is certainly in consonance with the policy and spirit of the law, that it should be so. If it were otherwise, the effect would be, to divest one creditor of the property, having éqfial equity, -and to cast it info the hands of another, who may first obtain judgment and. execution,1 which could not have been the intention of iba "legislature; for if the debt of one creditor is to be satisfied to the exclusion of all others, it cannot be very material to the rest, whether it be by means of an execution, or of an immediate transfer of the property by the debtor himself.

But if the deed to Winchester should be admitted to be null and void to all intents, and not to the end only, of vesting the property in the trustee of Boyle, it would not avail the plaintiff!

Money, specific pieces of coin, which are tangible, may be taken in execution, the actual possession and ownership being in the defendant; but money in the hands of a sheriff", cannot be taken by him, in virtue of a fieri facias on a judgment against the person who is entitled to receive it. Turner vs. Fendall, 1 Cranch, 134; because, though he has a right to the sum levied, and has his action against the sheriff’ if he fails to pay him the amount, yet he has not the legal ownership of the specific money received by the sheriff",until it is actually paid over to him. Though in such case, if the sheriff brings the money into court, he will be directed to pay it to the creditor, whose execution is in his hands against the property of him for whom it was levied, A mere chose in action is not subject to execution, be who has the right, not being in possession, which he ,can only obtain by legal judgment and execution,

It was well observed at bar, that an execution cannot be levied on the lien a judgment creditor lias upon the lands of liis debtor. So, though a fieri facias, from the time it is placed in tiie hands of the officer, binds the personal property of a debtor, yet an execution on a judgment against his creditor, cannot be levied upon the property so bound.

The land in the former case cannot be taken in execution and sold to satisfy a judgment against him who has the lien, because the legal title is not in him; nor the personal property in the latter, because the legal title is not in him by whose execution it is bound.

In this case it appears, that the molasses in question was shipped by Messrs. Cray, Fernandis Brothers, from Havanna to Baltimore, and consigned to Hugh Boyle, who had advanced for the purchase of it, on their account, 87886, to be reimbursed, and paid to him out of the salea thereof, over and above the regular and usual commission upon such, sales; whereby he.;acquired-a lien, in the twc-r, fold capacity of consignee and pawnee, to the. amount of his commission and the sum, advanced-, without having a. legal, title to the molasses itself, but only a lien, which he could not transfer by a pledge of the molasses as his own, and was. not subject to execution The defendant, there--’ fore, had no right, and could not legally have levied on thq molasses the fieri facias sued out by the plaintiff upon his- judgment against Boyle, if the deed, to Winchester] had not been made, ' ' .

JUDGMENT ATTIRMED.