In re rule upon Bastian , 1879 Pa. LEXIS 282 ( 1879 )

Mr. Justice Paxson

delivered the opinion of the court,

This cause, though spread over a large surface, presents but a single question, and one not difficult of solution. The proceeding in the court below was a rule upon the sheriff to show cause why he should not be attached, as for a contempt, in not paying into court the proceeds of the sale of certain real estate, sold by him as the property of Peter Herdic, under an execution issued out of the Common Pleas of Lycoming county, No. 155, September Term 1878, for the sum of $46,425. To the rule for an attachment, the sheriff answered substantially, that he had prepared and completed his return to said writ gbout the first day of September 1878, although, by inadvertence, it was not actually filed in the prothonotary’s office until the 29th of November following, when, at the same time, he paid into the hands of the prothonotary the sum of $8690.75, being the balance remaining undistributed; that the rest of the money made upon said execution had been applied to the liens entitled to the same; that the deeds to the purchasers of the respective properties were made and acknowledged at September term of the court, prior to the issuing of any rule upon the sheriff, and without objection on the part of creditors or any other persons. No notice was given to, or rule taken upon, the sheriff to pay the money into court until the 19th day of November 1877, at the term of the court next after the sale. The sheriff having declined to pay in the money for the reason that he had already applied it to the liens entitled, as he avers, to the same, the court below made absolute the rule for an attachment, which order is assigned for error.

The real cause of controversy is, that the sheriff applied the sum of $24,988.44 to the mortgage of William Weightman, of date of 16th May 1876, when there were sufficient prior judgments to have absorbed the whole of it. But these prior judgments, as we gather from the record, were liens upon other real estate amply sufficient to protect them. In fact, the. same had been already sold upon proceedings issued out of the United States Circuit Court, and a fund raised thereby ample to pay said judgments awaiting distribution in that court. We do not propose to discuss here the question of the legality of the distribution made by the sheriff. He has taken the responsibility, and is liable to a suit on the part of the disappointed creditors. It will be a sufficient answer to such suits to show that he has applied the money as the law would apply it. If he has not,- he is liable upon his official bond. That a sheriff may, in the absence of any notice or rule to pay the money into court, apply it to the liens, is well settled. He does so, however, upon his own responsibility, and is responsible on his official bond for any mistakes. The rule is correctly stated in Mather v. McMichael, 1 Harris 302. “ He (the sheriff) may, if he will, pay the money into court according to the command of his writ, and where ignorance or doubt exists, or controversy is threatened, his safety lies in this course. Because of the expense and delay attendant upon it, this ought not to be done where the officer sees his way clear; yet, if he choose to undertake distribution, it is, unquestionably, on his own responsibility.” We need not multiply authorities upon so plain a proposition. When parties are not satisfied for the sheriff to make distribution, they can always prevent it by a proper application to the court in seasonable time. But it comes too late when made long after the return-day of the writ, and after the sheriff has, in good faith, appliéd the money to the liens.

The learned judge of the court below, based his ruling, to some extent, upon the fact that the sheriff has failed to comply with the Lien Creditors’ Act of 20th of April 1846, which provides for a special return in cases where a lien-creditor is the purchaser at a sheriff’s sale. An examination of the return in this case, shows that it was not, and could not properly have been made under this act. William Weightman, the mortgage-creditor, to whose mortgage the fund was applied, bought a number of tracts of unseated land, and paid the money therefor to the sheriff. The remaining properties, and by far the most valuable, were purchased by R. J. C. Walker, J. W. Maynard and others. This position was practically abandoned upon the argument.

The order of the court below, of March 8th 1879, directing the sheriff to pay into court, within ten days, a sufficient amount to cover judgments and costs that intervene between the two mortgages of William Weightman; and further directing an attachment to issue against said sheriff upon his failure to comply with said order, is reversed and set aside, at the costs of the creditors, upon whose behalf said order was made.