Robinson v. Hart

Opinion by

Oblady, J.,

The undisputed facts disclosed by this record are as follows: Thomas J. Birmingham was the owner of a small store, which inventoried, at cost prices, -1650. Richard F. Robinson was liable as his indorser in the sum of $400. At the time of incurring this liability it was agreed that Robinson should be secured by a transfer of the store if it became necessary. On July 18, 1901, an execution was issued on a judgment of the court of common pleas, which became a lien on the goods in the store. On July 19, Birmingham sold the store to Robinson, who paid therefor a sum sufficient to paj1’ the execution and certain rents due by Birmingham, all of which were paid in full by the debtor and actual possession of the store was delivered to Robinson on July 22. On July 18, three creditors brought suit against Birmingham before a justice of the peace and recovered judgments against him on July 24, on which executions were issued on August 12, a levy made thereunder, and the stock of goods was sold by Luther W. Hart, a constable, and the defendant herein.

Robinson gave due notice of his claim to the property at the constable’s sale, but it was disregarded and this action was brought by Robinson to recover damages for the trespass.

The plaintiff recovered a verdict which represents the fair value of the goods. When Robinson bought the store the only execution he had any knowledge of was the one he arranged to pay in full, and that the price paid by him was a fair and reasonable one. His sole purpose in making the purchase so far as disclosed by the record was to provide for the payment of an honest debt.

The defendant offered to show on the trial that in arranging for the execution, a check was offered in part payment by Birmingham, which was declined by the sheriff and it was sent to but not received by the attorney who represented the execution until July 25. This offer was excluded by the court and the appellant urges that at the time of the sale to Robinson the goods were in the custody of the law so that the sale was fraudulent and void. This is the sole question raised by the assignment of error and it cannot be sustained.

The time when the check was received was not material under the facts, as the delay in transmission was not caused by Birmingham who had in good faith sent it by due course of mail service on July 19, and his intention to pay the execution relates to the time he mailed the check. Moreover the check was good for the money it represented, it was accepted as such by the attorney for the execution plaintiff and the judgment was satisfied on the record on July 26 as having been paid in full of debt, interest and costs. The execution from the common pleas vested in the sheriff an interest in the stock of goods, sufficient to enable him to pursue the goods levied on in the hands of a trespasser. But that interest was extinguished by the payment of the debt, and until the goods were sold by the sheriff by virtue of the writ in his hands there was a general property right to the goods in the judgment debtor, which was not divested by the sheriff’s levy. It remained in the debtor, subject to the levy and was at his disposal burdened with the lien of the levy. An execution and levy is entirely compatible with a continuing property right in the debtor, sufficient at least for sale and transfer. Had the levy been withdrawn by the execu-* tion plaintiff the right of the debtor to sell would not be questioned, and when the execution was satisfied by payment in full the debtor was at liberty to sell the property free of any incumbrance. The only lien on the goods on July 22 was the execution mentioned and when that was paid the sale to Robinson passed to him full title to the property. At most the cloud suggested by the appellant was removed and the transaction between Birmingham and Robinson was consummated long before the execution was issued by the justice of the peace.

The assignment of error is not sustained and the judgment is affirmed.