Wood v. Vanarsdale

• Decision Date: 13 February 1832
• Citation: 3 Rawle 401
• Parties: WOOD v. VANARSDALE.
• Court: Pennsylvania Supreme Court

3 Rawle 401

WOOD v. VANARSDALE.

Supreme Court of Pennsylvania.

February 13, 1832

APPEAL.

R issued an execution against V. and levied on personal property. While the levy was pending, V. made a general assignment to M. and N., who paid the amount of the execution to the sheriff, who paid it over to R. the plaintiff. R.'s attorney afterwards, at the request of M.'s attorney, but without the authority of R., assigned the judgment to M., who assigned it to O. Afterwards O.'s attorney directed the sheriff to levy on V.'s real estate. The sheriff returned no levy on the personal estate of V., but a levy on his real estate, which was afterwards sold under an elder judgment. After payment of prior incumbrances, there remained a balance in Court which was claimed by O., by virtue of R.'s assignment to him. Held, that the payment to the sheriff by M. and N was a satisfaction of the judgment; that no assignment of it by R.'s attorney, without his authority, could resuscitate it, and consequently, that O. the assignee, was not entitled to the balance of money in court.

To constitute a good levy on personal property, it is not necessary, that an inventory should in the first instance be made of it, or that the sheriff should immediately remove the goods, or put a person in possession of them. If they are within the power and control of the sheriff when the levy is made, it will be good, if followed up within a reasonable time by his taking possession of them in such a manner, as to apprize every body of the fact, that they have been taken in execution.

THIS was an appeal from the decision of the District Court for the City and County of Philadelphia, relative to the distribution of money arising from the sale, by the sheriff of certain real estate belonging to the defendant. The property was sold under a writ of venditioni exponas, issued by the plaintiff in this suit, for the sum of nine thousand six hundred and seventy-five dollars, of which there remained for distribution, after payment of liens and judgments, according to their legal priority, the sum of four hundred and thirty-nine dollars and seventy-five cents. This sum was claimed by John Moss, assignee of Richard Rowley, a judgment creditor, but the court rejected his claim, upon which he appealed to this court.

The following are the material facts of the case:

Richard Rowley, on the 1st of March, 1827, obtained two judgments against the defendant Vanarsdale, in the District Court for the City and County of Philadelphia, as of March Term 1827, one of them No. 411, for one thousand and thirty-one dollars and forty seven cents, payable in one year; the other, No. 412, for one thousand four hundred and eighty-three dollars and forty seven cents, payable in three equal instalments of four, eight, and twelve months. The first instalment of the last mentioned judgment was paid. When the second became due, the plaintiff, Rowley, on the 20th of November, 1827, issued an execution and delivered it to the sheriff, who levied upon the goods of the defendant, as was alleged by Rowley, but denied by his assignee Moss. The circumstances attending the alleged levy were stated in the deposition of William Heston, a sheriff's officer, which was the only evidence on the subject. From this deposition which was objected to by Moss, as inadmissible, but admitted by the court, it appeared that a fieri facias in the case of Rowley v. Vanarsdale, was placed in his hands by the sheriff, on the 20th of November, 1827. In the afternoon of that day, he went to the defendant's store, at the corner of Arch and Seventh streets, and informed him that he had an execution against him, which he requested him to satisfy. The defendant being unable to satisfy it, the deponent immediately levied on the goods in the store, of which there appeared to be a large amount. After the levy had been made, the deponent had a conversation with the defendant, who stated, that a short time before, he had a conversation with the counsel of the execution creditor, who had induced him to believe that he would not proceed in that way. He added, that if he had suspected such a course would have been pursued, he would have disappointed him by making an assignment; that he had been, and then was straining every nerve to pay his creditors, and they knew it, and that he was not retaining a single dollar for himself. After the deponent had made the levy as above stated, and had the above mentioned conversation with the defendant, he returned to the sheriff's office. On the same afternoon he was directed by the sheriff to go to the defendant's house in Spruce street. He went there about eight o'clock in the evening, when he saw the defendant and levied upon his household furniture: there was a good deal of elegant furniture in the house at the time, and deponent took an inventory of the principal part of it. He took no inventory of the goods in the store; left no person in possession of them, and was directed by the sheriff to leave no person in possession of them. None of the store goods, or household furniture were removed. The alleged levy remained in the situation thus described until Vanarsdale on the 22nd of November, 1827, made a general assignment of his property to Thomas C. Maybury, and Joseph L. Moss, in trust for the benefit of his creditors. On the 26th of the same month, the assignees of Vanarsdale, who were creditors and provided for by his assignment, paid the amount of the execution to the sheriff, who paid it over to the plaintiff's attorney, and on the 29th Morgan J. Rhees, Esqr. the attorney of the plaintiff Rowley, executed an assignment of the judgment, so far as respected the second instalment, to Thomas C. Maybury, who assigned it to John Moss. Mr. Randall, the attorney of Moss, directed the sheriff to levy on the real estate of the defendant. The sheriff of his own accord, and without directions from any one, returned no levy on the personal estate of the defendant, but a levy on his real estate, which was afterwards sold under a prior judgment. Moss claimed to be paid out of the proceeds of sale, the amount of the second instalment of the judgment, No. 412, by virtue of the assignment to him, contending that it was unsatisfied. This was opposed by subsequent judgment creditors of the defendant, and by Rowley, who held the judgment, No. 411, of the same date as the other, on the ground that the assignment to Moss, was made under mistake, without consideration, and passed no interest to the assignee; and also on the ground, that the proceedings which had taken place under the execution issued for the second instalment of that judgment, amounted to satisfaction.

The District Court ordered the money remaining in court to be distributed among the cotemporaneous and subsequent judgment creditors of Vanarsdale, from which order Moss appealed to the Supreme Court, where he assigned the following specifications of error in the proceedings in the court below, viz.:

First. The court below erred in admitting the deposition of William Heston.

Second. The court below erred in refusing to permit John Moss to receive the amount of the second instalment of the judgment of Richard Rowley, assigned to the said Moss.

Third. The court below erred in directing the balance of money in court to be distributed among the other judgment creditors of the defendant to the exclusion of the said John Moss.

J. Randall, for the appellant.

D. P. Brown, contra.

OPINION

KENNEDY J.

This case is considered as falling within the principle decided by this court in the case of Hunt v....