Bogue's Appeal , 1876 Pa. LEXIS 270 ( 1876 )

Mr. Justice Sharswood

delivered the opinion of the court, November 24th 1876.

These are appeals from the decree of the Court of Common Pleas of Fayette county, distributing the proceeds of a sheriff’s sale of personal property. They all rest upon the same ground and may be considered together.

Brown, Kunkle & Co. had a prior execution in point of time issued upon a judgment against A. Gr. Minehart, which was levied upon the interest of the defendant in the business and property of A. Gr. Minehart & Sons. The executions of the appellants were issued upon judgments against A. Gr. Minehart & Sons, and were levied on the property as of the defendants, and sold under these1 writs. The sheriff returned the sale as made under them, and paid the money into court.

The auditor in the court below, to whom the question of distribution was referred, gave the priority to the execution of Brown,, Kunkle & Co., on the ground, which he found to be the fact, that there was no such partnership as A. Gr. Minehart & Sons, and that the personal property levied upon and sold was the exclusive property of A. Gr. Minehart. "Whether he was right in this finding of fact it will be unnecessary to consider, as we are clearly of the opinion that it was not a question properly involved in the distribution. ITe was evidently misled by a cursory examination of the cases he cites, without observing -a marked distinction between them and that which was before him for determination : Appeal of the York County Bank, 8 Casey 446 ; Vandike’s Appeal, 5 Harris 271; Cope’s Appeal, 3 Wright 284. These were all contests between separate and partnership execution-creditors, in which the sheriff had levied and sold under all the writs, and so made, return. Neither party was concluded by the return made upon any execution except his own, and his own was in his favor. It followed that there were contradictory returns — as to whether the'goods from which the money had been made was separate or partnership property — and it was held in those cases that the court were bound of necessity to inquire and determine the fact, in order to enable them to distribute the fund. But the facts here were entirely different. Upon the execution of Brown, Kunkle & Co. the sheriff made return that he had “ levied on all the interest of A. Gr. Minehart in the business of A. G. Minehart & Sons, said partnership ¡property consisting of ready-made clothing, &c., and subsequently sold said property as that of A. G. Minehart & Sons, as per return to fi. fa. Nos. 144 and 150, of June 7th 1875.” The fi. fa. No. 144, to which the sheriff refers in this return, was one in favor of Stein & Co. against A. G. Minehart & Sons, and No. 150 a similar execution in favor of Henry Bogue & Son. To No. 144 the sheriff made return that he had levied on all the following described personal property belonging to the defendants A. G. Minehart & Sons, to wit: a lot of ready-made clothing, &c. “ After due and legal notice given, as required by law, I sold the same for the sum of $2404.07, which money, on leave given, I paid into court for distribution according to law.” Upon the other partnership executions he returned severally that he had “ levied on personal property of defendants, and sold the same as per return to fi. fa. No. 144.”

That Brown, Kunkle & Co. were not prevented by the return to the partnership executions from setting up their claim to the proceeds of the sale of the goods as the individual and separate property of their debtor defendant A. G. Minehart is clear, but that they were concluded and estopped by the return to their own writ is equally clear, both on principle and authority. It ivas expressly so ruled by this court in Paxson’s Appeal, 18 Wright 199, where the books and cases are cited. The return to their execution not only stated that the levy under it was only upon the interest of A. G. Minehart in the business and property of A. G. Minehart & Sons, but also that it was partnership property, and that he had sold it as such under the partnership execution. There was no sale under Brown, Kunkle & Co.’s writ. The money was made under the partnership writs, and so paid into court.

There was error therefore in trying the question of fact of the existence of the partnership, and the money ought to have been distributed to the execution-creditors of A; G. Minehart & Sons, according to their respective priorities.

Decree reversed, at the cost of the appellees, and record remitted to the court below, that distribution may be there made according to this opinion.