Work's Appeal
| Decision Date | 05 January 1880 |
| Citation | 92 Pa. 258 |
| Parties | Appeal of George T. Work, Sheriff. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ. STERRETT and GREEN, JJ., absent
Appeal from the Court of Common Pleas of Washington county: Of October and November Term 1879, No. 236.
Dougan & Todd and J. P. Sayer, for appellants.—It was the duty of the landlord to give notice of the claim for rent before the distribution of the proceeds of sale: Ege v. Ege, 5 Watts 139.
After sale, the return-day having passed, the sheriff may safely pay the execution-creditor, without waiting for the landlord to assert his claim. If under such circumstances, he is to remain liable three days, he must hold the proceeds indefinitely. There is no suggestion of fraud in the case. On the theory that the money realized at the vendue, was potentially in the sheriff's hands, we cannot think the law will hold its officer responsible, when he in good faith parted with the fund, after the time when he should have notice of the landlord's claim, and before he had actual notice of it.
Aiken & Duncan and John L. Gow, for appellee.—The direction "not" to advertise was not a stay of the writ. The levy is still in force. The property was not legally advertised for sale and was sold privately by permission of the sheriff. The appellee could not distrain for thus being under levy, the goods were in the custody of the law Pierce v. Scott, 4 W. & S. 344. A sheriff cannot deliver goods to a plaintiff in satisfaction of his debt: Watson on Sheriffs 189. The notice of Mrs. Howden was in time, since the goods under levy were sold and notice given three days afterward. The notice need not have been given before return-day, for the reason that the sale was made after return-day. The notice is in time if given at any time before the sheriff parts with the money: Ege v. Ege, 5 Wright 134.
If such proceedings are tolerated, an execution instead of being intended to enforce a debt, may hereafter be used to secure it, to the prejudice of those interested in the proceeds of the property levied on.
There is no substantial disagreement as to the facts of this case. The execution under which the levy was made was issued on October 1st 1877, and was made returnable to the second Monday of the same month, which was the eighth. The levy was made on the third. Immediately thereafter the plaintiff in the fieri facias notified the sheriff not to advertise a sale upon said writ, as he deemed it better to allow the defendant in said execution to sell the property levied upon. In consequence of this the sheriff took no further action; the goods were sold by the defendant at a public sale on the 10th of October, and the sheriff received no part of the proceeds except his costs on the writ. On the 13th of October, five days after the return-day, and three days after the sale, the appellee served a notice upon the sheriff that she claimed $200 arrears of rent out of the proceeds of the sale.
We are of opinion that the notice came too late. The directions of the plaintiff in the execution not to advertise a sale was a stay of the writ as to other execution-creditors: Commonwealth v. Stremback, 3 Rawle 341; Corlies v. Stanbridge, 5 Id. 286; Freeburger'...
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Shalet v. Klauder
...Wadas v. Sharp, 27 Pa. Super. Ct. 233; Ege v. Ege, 5 Watts, 134; Mitchell's Administrator v. Stewart et al., 13 Serg. & R. 295; Work's Appeal, 92 Pa. 258; Brown v. Jaquette, 94 Pa. 113, 116, 39 Am. Rep. 770; Barnes Appeal, 76 Pa. 50; In re Consumers' Coffee Co. (D. C.) 151 F. 933; In re Fle......
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Wadas v. Sharp
...Notice of landlord's claim must be given to the sheriff while the property or its proceeds are still within his power and control: Work's App., 92 Pa. 258; Leidich's Est., Pa. 451; Schuyler v. Coach Co., 29 W.N.C. 343; Lowry v. Evans, 2 Lack. Jur. 43; Wickey v. Eyster, 58 Pa. 501; Oram's Es......
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In re Assigned Estate of Leidich & Birnie
...was free to issue his warrant and distrain the property. To induce him to refrain, the agreement was made and properly enforced. In Work's Appeal, 92 Pa. 258, there was a stay of the by the plaintiff and possession given to the defendant to sell the goods levied upon. The sheriff received n......
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, March T., 1926, No. 384.
...until the return-day of the writ, he is not liable for the payment of the rent, if he has paid it over to execution creditors. See Work's Appeal, 92 Pa. 258. But this is not a contest between the landlord and the sheriff. There is nothing in the act requiring such notice to be given in orde......