Samuel v. Knight & Co.

Opinion by

Oblady, J.,

. The plaintiff issued an execution against the Ridley Iron Company, Limited, and the same day the deputy sheriff went to the office at the rolling mill of the defendant and received from the officers in charge a descriptive list of property which he entered in his levy book, as “ muck bar, coal, iron ore, charcoal, sand, clay, oil,” (which items are not in controversy in this issue) and also “about two carloads scrap iron” aud “all other goods under levy and subject to execution.”

At the sale which followed, the plaintiff became the purchaser of practically all of the defendant’s personal property which was sold by the sheriff, and subsequent to this sale, the defendants purchased from the Ridley Iron Company, Limited, two carloads of scrap iron, which was located outside of the rolling mill property, on a lot of ground near to and separated from it by a road about forty feet in width, which lot was leased by Jared Swanger — -a member of the iron company — as there was not enough space on the mill property, on which to pile the scrap iron.

The case is complicated by the fact that upon the mill property in and at the edge of the buildings there was some scrap iron which amounted to about two carloads in quantity, and further, that, at the sale by the sheriff, after the items of property had been specifically offered and sold to Mr. Samuel, the sheriff offered for sale what were called the reversions, or as described by the sheriff, viz : “ Q. Did you sell the reversions ? A. We did. Q. Did you explain at the time of the sale what the reversions included? A. Yes, sir; we always do, we did then. That a purchaser buys at his own risk; if there is anything that has been overlooked, he gets it. That is our idea of it. The property of the company that had been overlooked the buyer of the reversion got.” As to a particular levy on the two carloads of scrap iron on the Swanger lot the sheriff says: “ Q. You said in your examination before that you did not sell that two carloads, and that if they went at all they went in the reversions or remainders, or whatever you call them? A. We sold those shells that were near the end. Q. You sold the ones that were on the Ridley Iron Company near the end up against the mill? A. We sold them as scrap iron laying outside, but reversions, I do not know what reversions were. Q. Did you sell two carloads of scrap iron that were over on Mr. Swanger’s lot; you did not sell them as such? A. We did not go near Mr. Swanger’s lot, if I recollect. Q. When you say you did not know what the reversions were, you mean you did not know what they included? A. No, of course not. Q. You did sell a lot of scrap iron that was in the mill? A. Yes. sir. Q. You did not describe it as two carloads? You just described, it as that lot and pointed it out ? A. That lot; that was all.”

The learned trial judge said to the jury: “ The question is, in the first place, whether this lot of old iron was levied on and sold. That is the question which was presented to you and argued by counsel. If this old iron was lying there on an adjacent lot, placed there for the convenience of the company, was there at the time when the levy was made, I do not think you would be doing violence to any principle of law or to any fact which appears in the case if you regard the levy as having been made upon that lot of iron. It seems so to me. I should so regard it if I were in your place.” Third assignment. “ The sheriff says the items were put up and sold, and then there was a sale of what was left. If you believe this property was lying there — old iron — tying across the street, we will say, but still that it belonged to this concern, the Ridley Iron Works, and that it was, as I believe it was, included in the levy, and the different articles of property were sold and then, as the deputy sheriff says, what was left was sold to Mr. Hitner, representing Mr. Samuel, I should say that passed good title to Mr. Samuel.” Fourth assignment.

The counsel for plaintiff and defendant each submitted a point requesting the court to say that under the evidence the verdict must be for his respective clients, both of which were refused, but in the charge the jury were instructed, “ I confess it seems to me, looking at the case from my standpoint, not intending to take it from you, but intending to leave it to you to decide on what the evidence and law as I have stated to you justify, that the plaintiff has made out a better case here, and that your verdict ought to be for him.” Fifth assignment. The jury were practically directed to return a verdict for the plaintiff, as a different verdict would have been in plain disregard of the views of the court as expressed in the charge, and we must so consider the case. The manner of submission was an instruction that the plaintiff had the better case because the levy and sale included the iron on the Swanger lot. The evidence as to these material facts was not so free from doubt as to take their consideration from the jury. The person in best position to know was the deputy sheriff who made the levy and conducted the sale, and his testimony fairly points to the exclusion of the scrap iron from the levy as a specific item, and that at the sale the sheriff and. purchasers were not on the Swanger lot at all. Then did the title to the scrap pass under the sale of the item called reversions? In the case before us the deputy sheriff testified that in the office of the defendant he made a list of the property as given to him by the persons in charge, and subsequently sold the property so listed from the typewritten statement of his levy, and that he was not on the Swanger lot at anytime.

In Lowry v. Coulter, 9 Pa. 849, under very similar facts, it was held to be the duty of the judge to charge that if the sheriff did not see the property at the time of the levy and after it the execution was fraudulent and void. To be good the levy must be made in such a way that the officer has the property within his power and control, or at least within his view, and after having it so, he makes a levy upon it and follows it up within a reasonable time by taking possession in such a manner as to apprise everybody of the fact of its having been taken in execution. See also Wood v. Vanarsdale, 3 Rawle, 401; Bennett’s Branch Imp. Co.’s Appeal, 65 Pa. 242; McGinnis v. Prieson, 85 Pa. 111; Sweet v. Williams, 162 Pa. 94. The levy is an assertion of title by the sheriff amounting to a legal divestiture of the possession of the defendant, and such as would subject the officer making it to an action of trespass, but for the protection of the execution. It should be public, open and unequivocal, not depending for proof of its having been made upon a mere office entry. This is necessary to prevent fraud and litigation in regard to the title to property: Duncan’s Appeal, 37 Pa. 500, where the Supreme Court held that property not in the view of the sheriff until after the return day of the writ was not bound by the levy, and we see no material difference, if the property is ten miles distant from the sheriff’s view or on property but forty feet away, separated by a public road and on real estate of strangers to the writ. The important matter is, did the sheriff actually levy on it? The writ was a lien in the first instance on all personal property of the defendants in the county, but this must be followed up by the levy before the return day and a sale so as to specifically identify the property sold. On this question the evidence is not free from doubt. Seizing part of the goods, iu the name of the whole on the premises, is a good, seizure of the whole: Trovilli v. Tilford, 6 Watts, 468. But when the property in dispute is not on the premises of the defendant in the execution, and not identified by description, it should be seen by the officer to perfect a levy of it. They need not be removed (Jaffreay’s Appeal, 101 Pa. 588), but the disputed fact as to whether they are included in the levy is a question which the superior learning and judgment of a judge cannot be called in aid to solve. And his opinion, however correct it might have been, was improperly before the jury. It was not material as to how the trial judge would regard it if he were on the jury, as he was not so impaneled. Nor was it material whether he believed that it was included in the levy, as the officer was called to testify what he had done in making the levy, and whether it was or was not was a fact for the jury to find from the evidence. It is not only proper but in many cases it is the plain duty of the trial judge to comment upon the testimony (Commonwealth v. Van Horn, 188 Pa. 143), but in a civil case when points requesting binding instructions are refused for both plaintiff and defendant, we think the case should go to the jury to determine which has the better case on the preponderance of evidence freed from the opinion of the court.

The sale in bulk of the items of property under the designation of reversions would not pass title thereto if the property so sold was not levied upon, and whether so levied upon and subsequently sold was for the jury. Trial judges are not compelled to weigh their utterances regarding the evidence in the exquisitely balanced scales sometimes emploj'ed by ingenious counsel to discover whether too much or too little has been said (Walton v. Caldwell, 5 Pa. Superior Ct. 143), but when the evidence is conflicting and the inferences to be drawn therefrom are reasonably capable of different constructions, it is error to confine the jury to one view of the case when there is more than one which they should consider: Penna. Canal Co. v. Harris, 101 Pa. 80.

In the case in hand the theory of the plaintiff was specially emphasized, and that of the defendant ignored, by the trial judge, in which there was reversible error: Goerson v. Commonwealth, 99 Pa. 388; Minick v. Gring, 1 Pa. Superior Ct. 484.

The judgment is reversed, and a venire facias de novo awarded.