Gillespie v. Keating , 180 Pa. 150 ( 1897 )

Opinion by

Mr. Justice McCollum,

We agree with the learned court below that the sale was not made on the Western Electric Company’s writ. The auditor did not find that it was, but he said “ presumably it was advertised on all the writs.” The sheriff’s return showed a sale on the Gillespie writ, but it did not show a sale on the writ of the Western Electric Company. The evidence on this point was that the sheriff refused to sell on the latter writ without a bond of indemnity; that the bond was furnished to him, and that before the sale he surrendered it to the company. The fair inference from this evidence is that the company abandoned its purpose to sell, and determined to rely on its levy. It offered no explanation of the surrender of the bond, nor evidence to show that the sale was made on its writ. As this writ was issued on a judgment obtained after the assignment for the benefit of creditors was made the sheriff was justified in refusing to sell upon it without indemnity. The assignment being valid passed the title to the property to the assignee subject only to the antecedent liens. If there were no such liens upon it a seizure and sale of it on a writ issued on a subsequent judgment would have subjected the sheriff to a liability to the assignee for the full value of it. We think that under the circumstances the supposition of the auditor that the sale was on all the writs was unwarranted. On this point Judge White agreed with his associates although he dissented from the decree because it did not give the fund to the assignee for the benefit of creditors. It may also be stated in this connection that they agreed with him and the auditor that if the liens of the prior levies were lost by the laches of the sheriff the fund should be awarded to the assignee. Were the liens so lost? Certainly not as against the defendant in the judgment at whose instance and for whose accommodation the sale of the property was postponed. The execution creditors had no part in the postponement and there was no taint of actual fraud in it. It was the act of the sheriff based on the solicitation of the debtor, and intended to enable the latter to pay his debts without a judicial sale of his property. Prior to the assignment the execution creditors might have complained of the delay and possibly have instituted proceedings to put an end to it, but no one else could. After the assignment and the sale of the property the general creditors were in a position to claim the fund upon proof that the levies were collusive and fraudulent as to them. But no ■general creditor could acquire priority over the others by issuing an execution and levying upon the property after a valid assignment for the benefit of all the creditors had been made and tbe property had passed under tbe control of tbe assignee. This is precisely what tbe Western Electric Company seeks to ■do. Its contention is that tbe fund realized by tbe sale belongs to it or to tbe prior execution creditors, and its effort is to postpone tbe latter for its exclusive benefit. No general creditor as such is contesting tbe validity of tbe levies made on the Gillespie and Hoffman writs or tbe claims of tbe plaintiff in them to tbe fund.

Tbe evidence is clear and convincing that the executions issued before tbe assignment were delivered to the sheriff with directions to make tbe money upon them; that these directions were not countermanded or modified by tbe parties, and that 'they were repeated more than once by tbe plaintiff in tbe first ■execution. Tbe plaintiffs in the executions are thus exonerated from responsibility for tbe delay in making tbe sale, and if they lose by it their loss is chargeable to tbe sheriff’s disregard of their positive instructions. No case has been cited which can be justly likened to tbe one before us, or which furnishes a clear warrant or precedent for the decree contended for on this appeal.

In Earle’s Appeal, 13 Pa. 483, tbe court found from tbe evidence that tbe plaintiff “ did not put bis execution in the bands ■of the sheriff with a bona fide intent that be should proceed and make tbe money according to law.” In Weir v. Hale, 3 W. & S. 285, it was the arrangement between tbe first execution creditor and tbe defendant which was adjudged to give the subsequent ■executions priority. These cases are plainly distinguishable in their facts from tbe case at bar. That they have not been considered heretofore as overruling M’Coy v. Reed, 5 Watts, 302, is shown by McGinnis v. Prieson, 85 Pa. 116, in which it was said that “ an execution will not be postponed for tbe officer’s default. His procrastination even by tbe sufferance of tbe creditor is not fraudulent per se and postpones only when tbe creditor directs him not to proceed.” In tbe case now under consideration tbe auditor’s findings of fact approved by tbe court, furnish an adequate basis for tbe decree appealed from, and they appear to be well sustained by tbe evidence.

Tbe Western Electric Company is not in tbe position of an execution creditor having a levy before the assignment. It does-not dispute the validity of the assignment and it has acquired by its levy no priority over the other creditors, or standing to-contest the preceding levies. Whatever rights it had respecting these levies were thosé of a general creditor and exercisable-under the assignment. In Missimer v. Ebersole, 87 Pa. 109, it was held that there could be no valid levy made on a writ issued after the assignment.

The specifications of error are overruled.

Decree affirmed and appeal dismissed at the costs of the-appellant.