Morrison v. Hoffman , 1 Pa. 13 ( 1845 )

The opinion of the court was delivered by

Kennedy, J.

In the matter of the appropriation of the moneys raised from a judicial sale made by the sheriff of the real estate of David Loy. The sheriff, after having made the sale, brought the moneys arising therefrom into court, that the same might be appropriated according to a decree of the court to be made for that purpose. The court appointed an auditor, to whom the matter was referred, that he, after notifying all the parties concerned to appear before him, at a time and place contained in the notice to be given, might investigate and inquire into the same, and make report of all the circumstances and facts connected therewith, as also of the appropriation of the moneys that ought to be made. The auditor accordingly, after proceeding in the matter as directed by the court, made a report, to which Joseph S. Morrison, George F. Steele, and D. Puderbaugh, having severally judgments against David Loy, that bound his real estate at the time of the sale thereof, made by the sheriff, severally excepted. The court, however, after hearing the parties by their counsel, approved and confirmed the report of the auditor, and decreed the money in court to be paid in conformity to it. These gentlemen considering themselves aggrieved by the decision of the court in this respect, have appealed therefrom to this court.

They complain, that the money arising from the sheriff’s sale, which ought to have been applied to their judgments respectively, was appropriated to the payment of judgments posterior in date to theirs, the liens of which being subsequent, ought therefore to have been postponed. That the judgments of the appellants were obtained and became liens first in point of time upon the réal estate of David Loy, is not denied; but it appears, that the appellants issued writs of fieri facias on their respective judgments, directed to the sheriff of the county, 'which were placed in his hands for execution, to which he made a return of having levied on personal property, specifying it apparently of sufficient value, had it been sold, to have satisfied ■ the said judgments; but left the property levied on, without selling, or even attempting to sell it, as it would seem, in the exclusive possession of the defendants, as it was before; and although Joseph S. Morrison issued a writ of venditioni exponas, to April term, 1840, directing the sheriff to sell the personal property levied upon in his case, yet the sheriff made a return thereto, “not executed by order of plaintiff.” So, George F. Steele, although he issued, to November term, 1842, the next term succeeding the retain by the sheriff of personal property levied in his two cases, writs of venditioni exponas, requiring the sheriff to sell the property so leyied, yet the sheriff returned thereto, “ sale stayed by order of plaintiff.” This return, however, would appear to have been made under a mistake on the part of the sheriff, for he has sworn, that he had no such order from Steele, the plaintiff, but had such an order from David Puderbaugh, as to his own executions against David Loy, and had some impression at the time, that Puderbaugh had some control over Steele’s executions, which Puderbaugh denies on his oath. And so David Puderbaugh, who issued writs of fieri facias on his two judgments to August term, 1842, although he issued also writs of venditioni exponas to November term, 1842, afterwards stayed the execution of them. Some of the property levied upon by the sheriff, under the executions of some of the appellants, was afterwards taken in execution and sold at the suit of other judgment creditors, but the residue, which was much the greater part of it, was disposed of and used by the defendants themselves in the executions. Indeed, there was nothing to prevent them from doing so, as the possession of it was never taken from them, but, on the contrary, continued with them as before, to use it as they pleased. Upon this statement of the facts, it is argued, that the appellants lost that preference to which, otherwise, they would have been entitled, of having their judgments satisfied first out of the money in the court below, if they had not had a levy made on the personal property of the defendants under their judgments. That having sued out writs of fieri facias, and caused a levy by virtue thereof to be made by the sheriff on the personal property of the debtors, they were bound to prosecute the same with reasonable diligence, so as to render the execution of the judgments effectual, if practicable. That their conduct in suing out their writs of -execution, and. having a levy returned thereon by the sheriff on the personal property of the debtors, was calculated to hinder, or at least delay, if not prevent, other judgment creditors from suing out executions, and’ taking the same property to satisfy their judgments, as it would most probably involve them in a contest or suits. Besides, as is alleged, it was calculated to malee them believe, that the prior judgments of the appellants would be satisfied out of the personal property of the debtors, and that the real estate of the latter would hereby become a good and ample security for the payment of their judgments; and that then, through the conduct of the appellants, they were lulled to rest. There is great plausibility, as well as some force, in this argument, but still we do not think it sufficient to give the junior judgment creditors a preference to the moneys in the court below, over the appellants. The effect of giving such preference in this case would be to decide, that the appellants, by their neglect and lack of vigilance, had not only postponed their right to receive the amount of their judgments out of the money to that of the junior judgment creditors, but had actually altogether released or discharged the real estate of the debtors from the lien of their judgments, for it seems that the debtors are insolvent and have no property whatever remaining out of which the appellants could possibly make the amount of their judgments. It cannot be pretended for a moment, that, as between the appellants and the debtors, the former have done, or caused to be done, any thing whereby their judgments can be said to be satisfied, either in fact or in law, so that they would be entitled to claim the amount of their judgments as against the debtors themselves, out of the moneys made by the sale of their real estate. They obtained nothing by their levies on the personal property of their debtors, nor did the latter part with, or give up any thing levied on, for the purpose of satisfying the debts due to the former, but, on the contrary, used the same for other purposes. Next, let us inquire and see whether what was done by the appellants ought to be regarded as having produced any injury or detriment to the junior judgment creditors. The manner in which the sheriff made the levies on the personal property of the debtors at the respective suits of the appellants, by leaving it in their exclusive possession, to be used in the same way by them, as they had ever done previously, could not prevent the junior judgment creditors, if there were any at the time, from suing out executions so as to take the same property in execution, and having it applied to the payment of their judgments. The levy of the appellants, by leaving the debtors, the defendants in the executions, in the exclusive possession of the property, as was done, would have been void as against subsequent executions, if they had been issued. And hence the junior judgment creditors could not in law be said to have been hindered or delayed in suing out execution upon their judgments, and by virtue thereof, from having the personal property, previously levied on by the appellants, taken in execution and appropriated to the discharge of their claims. It may be said, to be sure, that they were ignorant of the law and their lights in this respect, and were, therefore, in point Of fact, actually hindered and delayed from obtaining payment of their judgments. But it is a sufficient answer to this suggestion to say, that they were bound to know the law on the subject, and we must presume, therefore, that they did know it, and that their lying by and forbearing to proceed by suing out executions on their judgments, as they had a right to, and might have done, was a matter of choice and voluntary on their part; and if so, they certainly have no good ground to complain of the conduct of the appellants. And as to Joseph S. Morrison especially, one of the appellants, there does not appear to be even the least shadow of ground of complaint; for the subsequent judgment creditors, who have had the money which he claims decreed to them by the court below, were not in being at the time he proceeded and had the personal property of the debtors levied on under his judgment. So that, as to him, they cannot be said to have even an imaginary ground for pretending that they were hindered or delayed in obtaining satisfaction or payments of their debts. Had it been shown that the consent of the appellants in suing out executions on their respective judgments as they did, and having levies made by virtue thereof on the personal property of the defendants therein named, was the result of previous collusion between them and the same defendants, for the purpose of deterring other creditors from levying on- and taking it, so that the defendants or debtors in the executions might have the use and benefit of it; the case would have been very different, and, doubtless, such as would have postponed the right of the appellants to receive the money in question. But nothing of the sort has been shown, nor is it even alleged. We therefore think, that the court below erred in confirming the report of the auditor, and in decreeing that the appellants should not have their respective judgments paid out of the money in court, according to the seniority of their original dates and liens. The decree of the court is reversed in this particular, and the judgments of the appellants respectively ordered to be paid out of the money in the court below, according to the seniority of their respective dates and original liens.