Lewis v. Dillard, 711.

• Decision Date: 12 October 1896
• Docket Number: 711.
• Citation: 76 F. 688
• Parties: LEWIS et al. v. DILLARD et al.
• Court: U.S. Court of Appeals — Eighth Circuit

76 F. 688

LEWIS et al. v. DILLARD et al.

No. 711.

United States Court of Appeals, Eighth Circuit.

October 12, 1896

W. F Werner was the collector of the public revenue of the county of Crittenden, in the state of Arkansas; and, being unable to settle his accounts as such collector in the time and mode required by law, he signed and delivered to his bondsmen on the 26th of July, 1893, the following paper:

"Gayoso Hotel, Memphis, Tenn., July 26, 1893.

"Assets of W. F. Werner.

21 head of mules	1,000
Farming utensils	100
3 four-horse wagons	100
1 buggy ....................................	75
1 surrey ...................................	50
2 horses ..................................	100
25 hogs, more or less ......................	60
20 head of cattle, more or less ...........	100
1 jackass .................................	100
500 acres of cotton, more or less .......	2,000
100 acres of corn, more or less ...........	400

"$500 due me by citizens of Crittenden county, more or less, $5,000.00 interest in Crittenden county scrip, held by Jno. (mortgaged for $3,500.00) Armestead. $500 due me in Crittenden Co. scrip, more or less, by citizens of Crittenden Co. W. F. Werner.'

On the 28th of July, 1893, Werner delivered the possession of all the property mentioned in this paper to C. L. Lewis, as trustee and pledgee for Werner's bondsmen, with authority to him to sell the same, and to gather and sell the crops of cotton and corn, and appropriate the proceeds of the sale to the payment of Werner's indebtedness to the school fund of Crittenden county, which recited, in substance, that there was due to the state from Werner, as collector of the public revenue, the sum of $16,378.76, and commanding the constable to levy and sell the goods and chattels, lands and tenements, of Werner and his sureties (naming them), to satisfy the sum due the state. The property, the proceeds of which are here in controversy, was duly levied upon by the constable under this distress warrant; and while the same was in his possession by virtue of such levy the possession was forcibly taken from him on the 15th of September, 1893, by the United States marshal, who proceeded to levy on the property an execution issued on a judgment against Werner, and in favor of Cochran. The judgment in favor of Cochran was recovered on March 20, 1893, for $12,018.30. On July 29, 1893, execution was issued on this judgment, and came into the hands of the marshal the same day, and on the 15th of September, 1893, was levied on the property, the proceeds of which are here in dispute; the marshal taking the property from the possession of the constable for the purpose of making such levy, as before stated. Dillard & Coffin had a deed of trust or chattel mortgage on all the property mentioned, which was prior in date and superior to the claim of all the parties to this suit. At this stage of affairs, Cochran, Lewis (Werner's bondsmen), and Dillard & Coffin entered into an agreement, on the 19th of September, 1893, which, after reciting in substance the foregoing claims of the parties, and also the further fact that the state of Arkansas was asserting a right to subject the property mentioned to payment of the debt due the state from Werner in his official capacity, as collector of the public revenue, provided that the marshal, by his deputy, Bowen, might continue in possession of the property, gather and sell the crops of cotton and corn, and sell the other property, and pay the proceeds, less certain costs and charges and the rent on the land, to Dillard & Coffin, who, after satisfying their own mortgage debt against Werner, were to pay the remainder into the registry of the United States circuit court for the Eastern division of the Eastern district of Arkansas, there 'to await the determination as to whom the property belongs; it being hereby expressly agreed that the rights of the parties hereto, respectively, are preserved, it being the intention of this instrument merely to avoid costs and expenses, and obtain the largest amount of money possible, over which the said Cochran, Lewis, and the state of Arkansas may litigate their rights. * * * ' The property was sold, and the proceeds applied as provided in the agreement. Dillard & Coffin's debt was satisfied in full, and they paid into the registry of the court the remaining proceeds of the sale of the property, amounting to $2,069.77. This bill was filed on the 1st of December, 1894, by Cochran, the appellee. Lewis, one Morris, and Werner are made defendants. The bill alleges that the appellee is entitled to the fund in the registry of the court by virtue of the levy by the marshal of the execution issued on the Cochran judgment. Lewis answered, denying the complainant's right to the fund, and setting up a claim thereto as trustee and pledgee for Werner's sureties on his official bond. The state of Arkansas, by leave of the court, intervened, and set up a claim to the fund by virtue of the issuance and levy of the auditor's distress warrant on the property. So that there are three claimants to the fund in the registry. Cochran claims it upon the ground that he acquired a lien on the property by the levy of his execution thereon, Lewis claims it as trustee and pledgee for Werner's sureties on his official bond, and the state of Arkansas claims it by virtue of the levy thereon of the distress warrant issued by the auditor against Werner as a defaulting collector of the public revenue. The court below decreed that the fund belonged to Cochran, and Lewis and the state of Arkansas appealed.

W. G. Weatherford, for appellants.

John J. and E. C. Hornor, for appellee.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge, after stating the case as above, .

Under the agreement, the rights and liens of the parties attached to the proceeds of the sale now in the registry of the court in the same manner, in the same order, and with the same effect as they bound the property before the sales were made. Markey v. Langley, 92 U.S. 142, 155; Astor v. Miller, 2 Paige, 355; Brown v. Stewart, 1 Md.Ch. 87; Olcott v. Bynum, 17 Wall. 63. At the time the marshal attempted to levy the Cochran execution on the property, it was either in the actual possession of the constable, under and by virtue of the levy thereon of the auditor's distress warrant, or in possession of Lewis as agent and pledgee for Werner's bondsmen. Whether the constable or Lewis had the possession of the property, the action of the marshal in forcibly taking the possession...