Commonwealth use of Finn
| Decision Date | 16 March 1896 |
| Docket Number | 119 |
| Citation | 174 Pa. 355,34 A. 581 |
| Parties | Commonwealth of Pennsylvania to use of G. Howell Finn, surviving and liquidating partner of Granville P. Quinn and G. Howell Finn, lately trading as Quinn & Finn, W Andrew Comrey, E. S. Reinhold, W. H. Evans, Edward Gorman and Joseph Hughes, Appellants |
| Court | Pennsylvania Supreme Court |
Argued February 17, 1896 [Copyrighted Material Omitted]
Appeal, No. 119, July T., 1895, by defendants, from judgment of C.P. Schuylkill Co., Jan. T., 1894, No. 17, on verdict for plaintiff. Affirmed.
Assumpsit on sheriff's bond.
At the trial the court directed a verdict for the plaintiff for $949.96, reserving the question whether under the pleadings and evidence there could be any recovery by the plaintiff.
A verdict was rendered in accordance with the instruction of the court, and subsequently a motion was made for judgment for defendant non obstante veredicto. ENDLICH, J., of the 23d judicial district, specially presiding, filed the following opinion:
Conceding the truth of all the defendants' testimony, together with every inference capable of being drawn by the jury favorable to them from any part of the whole testimony, the material facts of this case are briefly these:
The defendant Comrey, in March, 1891, while sheriff of this county, was directed to levy certain executions issuing out of this court at the instance of this use plaintiff upon the property of Geo. W. Johnson et al., the writs being returnable to May term, 1891. There were other executions in his hands against the same parties, and after making levy under the writs of the use plaintiff, the sheriff, upon one of those earlier executions, on March 10, 1891, sold the property of Johnson et al., a colliery leasehold, together with the machinery in place, to one Silliman, the creditor in the execution on which the sale took place, for $6,000. The conditions of the sale called for payment in cash or resale the purchaser to make up any deficiency in price in the latter event. Up to April 10, 1891, $3,000 were paid in by the purchaser, and subsequently $235.46 more. Before any of these payments were made, the property had been handed over to the purchaser, or at least virtually abandoned by the sheriff, who permitted the return day of the writs to pass without collecting the balance or putting the property up for resale, although he was urged from time to time to close up the matter. In this situation of affairs, some time after the middle of May or early in June, the sheriff received a communication, purporting to come from counsel for the use plaintiff, agreeing to a temporary possession of the property by Silliman (for the purpose of taking the water out of the colliery and selling it) and the deferring of payment of the balance of the purchase until July 1. But the money was not then paid, nor the property resold. In October, 1891, the sheriff, in lieu of payment, accepted Silliman's receipt for the balance still due (the various judgments held by him against Johnson et al. equalizing that amount) and thereupon made a return such as is prescribed by the act of April 20, 1846, P.L. 411, in cases of sales of real estate to lien creditors, and also showing that the whole amount paid in in cash by the purchaser had been disbursed by the sheriff in payment of costs and preferred claims, wages, etc. This return being on the same day excepted to on the ground that the sheriff's acceptance of Silliman's receipt was unauthorized, and that he was bound to collect the money and submit to the direction of the court as to its distribution, the court appointed an auditor to report the facts and proper distribution. Notice of the audit was duly given, but whilst the sheriff's counsel appeared at the audit, he does not seem to have appeared for the sheriff, but for other parties interested, among them Silliman. In May, 1893, after defendant had gone out of office, the auditor filed his report, deciding, inter alia, that the sheriff had no right to take the purchaser's receipt, the property sold not being real estate and therefore not within the provisions of the act of 1846; treating the money for which the sheriff had given his receipt to Silliman as before him for distribution, and distributing to the use plaintiff $874.57 thereof. Upon exceptions filed to this report by certain parties, not including the sheriff, the same was on July 3, 1893, confirmed absolutely by this court, per BECHTEL, J. There was no appeal from this decision, and in November, 1893, this suit was brought upon the sheriff's bond, the cause of action, in the declaration as originally filed, being said to be the failure of the sheriff, after levy of plaintiff's execution and selling the property of Johnson et al. for $6,000, to bring the money into court as commanded by the writs issued at the instance of the use plaintiff, or to pay him the money coming to him upon his executions or any part of it. An amendment allowed April 30, 1894, reduces the claim from $2,000 as originally laid to $800, with interest from July 31, 1893, adding that that sum had been distributed, as above stated, to the use plaintiff as his share of the proceeds of said sale.
Now what answer is there, at this time, to this claim? It is certainly a fact, that the sheriff permitted Silliman to take possession of the colliery without compliance with the conditions of the sale, and that he allowed the return day of the use plaintiff's writs to pass by without putting the property up for resale or collecting the money which was payable immediately upon the sale. Nor, in doing this, had he the consent of the use plaintiff. Whatever indulgence was allowed was granted after his rights against the sheriff had become perfected, could not have misled him, was in no way the inducement to his failure to perform his duty in season, was entirely without consideration, and cannot, for all these reasons, amount to a ratification of what had been done or not done before. Moreover, the indulgence was of a temporary character. It was to expire on July 1st. But the sheriff permitted that limit also to slip by and did nothing. And again, if there was any agreement between him and the use plaintiff for the extension of the period of payment, its very terms contemplated a collection of the money, a forthcoming of cash, at the end of it -- the admitted purpose of the delay being to enable the purchaser to realize upon his purchase and get the wherewithal to pay for it. Surely, the sheriff cannot justify his failure to proceed on the basis of an understanding whose terms he proves himself to have violated and whose avowed purpose he frustrated by the acceptance of Silliman's receipt in lieu of cash, three months after the expiration of the limit fixed. If that was to be done, there was no occasion for any delay. It might as well have been done ten minutes as seven months after the sale. But it is said that he was protected by the fact that he made a return to the court showing what he had done, and thereby throwing upon the court the responsibility of declaring whether it was right or wrong, and making such order as was necessary to protect both him and the creditors. The general rule is that "every man must in the first instance interpret the law for himself in endeavoring to obey it:" Boom Co. v. Dodge, 31 Pa. 285, per LOWRIE, C.J. It was decided as far back as Mather v. McMichael, 13 Pa. 301, that the sheriff making distribution of the proceeds of a sale, does so upon his own responsibility. The return pointed out by the act of 1846 was intended for the benefit of the lien creditor purchaser: Franklin Twp. v. Osler, 91 Pa. 160, and unless required by him the sheriff is not bound to make it: Ibid....
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