
    [Chambersburg,
    October 31, 1825.]
    DEAN and others, Assignees of DAVIDSON, against PATTON.
    IN ERROR.
    If after the execution of a mortgage, but before it is recorded, the mortgagor gives a judgment to another creditor, who after the mortgage is put upon record issues a fieri facias, which is returned, levied on personal property, and several years afterwards the mortgagor gives a second judgment to the same creditor, who issues a fieri facias upon the second judgment, which is also returned, levied on personal property, after which the personal property was sold under writs of venditioni exponas issued upon both judgments, the plaintiff in those judgments cannot, even with the consent of the defendant, have the proceeds of the sale applied to the satisfaction of the second judgment, so as to continue the lien of the first upon the land, to the exclusion of the mortgage; and if the sheriff, after having sold the mortgaged premises, apply the proceeds of sale to the satisfaciaction of the first judgment, he is responsible to the mortgagee.
    In the Court of Common Pleas of Huntingdon county, to which this writ of error issued, the plaintiffs in error, Dean, Marshall, and Hunter, who were also the plaintiffs below, brought this action of assumpsit as assignees of Benjamin Davidson, an insolvent debtor, against John Patton, who had been sheriff of Huntingdon county, to recover a sum of money, part of the proceeds of the sale of mortgaged premises, which he had applied to satisfy a judgment. The mortgage was not recorded for more than a year after its date, and in the mean time judgment was obtained against the mortgagor. The moi’tgage was then recorded, and another judgment was obtained against the mortgagor, at the suit of the same plaintiff. Executions were issued upon both judgments, and personal property which had levied upon on the first judgment, was applied by the consent of the plaintiff and defendant in those two judgments to satisfy the last judgment, leaving the first to operate on the mortgaged premises.
    The details of the proceedings were as follows: On the 31st of July, 179S, a mortgage was given by James Clarke to Benjamin Davidson. On the 10th of August, 1798, John Canan obtained a judgment against Clarke, for one hundred and fifty-three pounds, and the mortgage was afterwards recorded, namely, on the 20th of August, 1799, To April term, 1803, a. fieri facias was issued by Cañan against Clarke on his judgment, which was returned by the sheriff, goods levied, viz. four horses, ten cows, twenty sheep, twenty hogs, grain in the ground, wagon, and all the defendant’s household furniture and farming utensils. To November term, 1805, a scire facias issued on Davidson’s mortgage, on which judgment was entered the 30th of April, 1807. On the 21st of May, 1S07, Canan obtained a second judgment against Clarke for forty-six pounds, thirteen shillings, and five pence, and issued a fieri fardas thereon to November term, 1807, to which the sheriff returned, goods levied, viz. five horses, ten cows, twenty sheep, grain in the barn, and stock and granary household furniture, and farming utensils. To August term, 1808, a venditioni exponas, No. 1, was issued by Canan on his second judgment, and a venditioni exponas, No. 2, on his first judgment. No. 1 was returned, goods all sold: amount of sale four hundred and thirty dollars and eighty cents, debt, interest, and costs to be credited in full on this suit, remainder to be credited on venditioni, No. 2, to August, 180S. This, it appeared in evidence, was done by the agreement of Canan and Clarke. The plaintiffs in this suit had the mortgaged premises sold by the sheriff in 1809, and they brought less than the sum due to the plaintiffs on their mortgage. The balance due to Canan upon his first judgment, after the arrangement between him and Clarke, as above stated, was deducted from the proceeds of sale of the mortgaged premises, and paid over by the defendant to Canan: and for the loss thus sustained by the assignees, the present suit was brought.
    The plaintiffs requested the court to instruct the jury, in matter of law, as follows, and to reduce the opinion of the court to writing, and file the same on record.
    1. The levy on the fieri facias to April term, 1803, Canan against Clarke, is prima facie evidence of a levy to the amount of the debt, interest, and costs, and it lies upon the defendant to show that the levy was not sufficient to pay the same, and, not having done so, the prima facie evidence is conclusive, that the same levy was sufficient to pay the debt, interest, and costs of that fieri facias.
    
    2. The property levied upon by the execution to April, 1803, must be first appropriated to the payment of the debt in that execution, and cannot be applied to the execution to November, 1807.
    3. The judgment of Canan against Clarke, entered the 21st of May, 1807, is subsequent to the judgment of the assignees of Davidson against Clarke, entered on the 30th of April, 1807, and is not entitled to any part of the money arising from the sale of Clarke’s land, until the judgment of the assignees of Davidson against Clarke is fully paid and satisfied.
    4. As soon as the sheriff levied on the goods of the defendant in the execution to April, 1803, the property in the goods became altered and vested in the sheriff, and he became debtor to Canan, the plaintiff, for the amount of the property thus levied.
    
      5. When two writs of fieri facias are levied upon the same property, as in this case, the first fieri facias must be fully paid by the sheriff before any part of the proceeds of the property levied upon can be appropriated to the payment of the debt, interest, and costs of the second execution, and the whole amount of the fieri facias to April, 1803, should be satisfied before any part of the proceeds of the levy in that case could be legally applied to the fieri facias to November, 1807.
    
      6. Whenever a fieri facias is directed and delivered to a sheriff, he is bound to execute the same on the defendant’s property, and is liable for all mistakes and for the value of all the property levied upon, even, though the same should be rescued from the sheriff, or destroyed by the original defendant; and if Clarke sold, eat up, or destroyed the articles, or any of them, levied upon by virtue of the fieri facias to April, 1803, the sheriff, (the present defendant,) is liable for all articles so sold, eaten, or destroyed.
    Charge of the court.
    “It seems that two writs of execution wore in the hands of Sheriff Patton, in favour of Canan against Clarke, and that a levy was made on the fieri facias in each case. A writ of venditioni ex-ponas was issued subsequently in each case, upon which sale was made, and, as the witness stated, by the consent and direction of Canan and the defendant. The sheriff was directed by them to appropriate the money raised by the sale of the personal pi’operty to the execution of the younger judgment, and to pay over a balance that remained to the elder judgment. We cannot see any impropriety in this. In law the parties had a right to make this appropriation, if the facts stated are true.
    “If Canan had no notice of Davidson’s mortgage until it was put upon the record, then he had the first lien upon Davidson’s land, and the land stood bound for the payment of that lien, and Canan could not be required by the mortgagee to proceed against the personal property; he was at liberty to proceed or not to proceed, at his pleasure. If he did proceed, so far as to issue a fieri facias and make a levy, he might give indulgence from time to time to the defendant, or he might enforce a sale at his option: he was to be the judge in his own case how and when he was to proceed. There existed no privity between Davidson, or his assignees, and John Canan, by which they could control him in the management either of his judgment or execution. I cannot discover any principle that would, under the circumstances of the case, prevent Canan and Clark from appropriating the px’oceeds of the personal estate to which of the two executions in the hands of the sheriff they pleased. Such appropriation is consistent both with law and equity.”
    Answers of the court to the plaintiff’s points.
    “ 1. If the facts were as supposed in this point, the legal inference is well enough; but you will decide whether it has not been shown by the defendant that the levy did not satisfy the judgment. But the proceeds were appropriated aceoi’ding to the principle which we have before stated.
    “2. We have given our opinion on this point befox-e.
    “ 3. Atyyvered in the affirmative, as requested. The defendant does not cMm under this judgment any part of the money arising from the sale of Clarke’s land. He elaims to have it satisfied out of the personal estate. '
    
      « 4. We see no objection to this point, and answer it accordingly.
    .«5. This is the law between different parties, but when both executions are in favour of one plaintiff, that plaintiff and defendant may direct otherwise, when third persons are not in a condition to be affected by such management.
    « 6. This point is correct, as a general principle. How far it is applied to this case, appears from what we have already said.”
    The plaintiffs excepted to this charge, and the answers of the court.
    
      Dunlop, for the plaintiffs in error,
    now argued that the mortgagee was greatly prejudiced by the proceedings in this case. The goods levied on by the first fieri facias were suffered to lie in the defendant’s hands five years, after which that levy was applied to pay off a younger judgment, in consequence of which the first judgment fell on the land. But the execution first levied must be first executed: seizure by the sheriff divests the property of the defendant. 1 Lord Raym. 252. 1 Salk. 323. Here was a fraud in the appropriation of the money, an underhand agreement to the injury of a third person, which chancery will relieve against, when committed in the course of legal proceedings. 1 Madd. 111, 205, 225, 226.
    
      Burnside, contra,
    contended that the opinion of the court was right. Our first judgment had a preference to Davidson’s mortgage. We levied on the personal property of Clarke, but we had a right to release that levy. When the sheriff sold in 1808, lie had a venditioni exponas in his hands on each judgment. The transaction was fair, — wholly untinctured with fraud. Besides, the mortgagee should have applied to the court for an appropriation of the money, or have given notice to tbe sheriff not to pay Canan, who having become insolvent, the sheriff will be left without recourse to him.
    The court did not hear Dunlop in reply.
   The opinion of the court was delivered by

Duncan, 3.

This case is stated with such commendable brevity and perspicuity, that it is only necessary to refer to the paper book, barely stating the dates of the several transactions.

Canan’s first judgment against Clarke was dated the 10th of August, 1798: his fieri facias on this judgment, returned levied on personal property, was to January, 1803. His second judgment the 21st of May, 1807 •. fieri facias to November term, 1807; returned levied on personal property. Davidson’s mortgage from Clarke was executed on the 31st of July, 1798, and recorded on the 20th of August, 1799, to the terrrwif August, 1808. Venditioni exponas issued on both of CVm «72^ judgments, and sale made on both, on the 23d of April, 1808.

Doubtless Canan and Clarke might make any arrangements between themselves which pleased them, if they did not interfere with the rights of others. But there is no honester maxim of the law than this, — Sic útero tuo ut non alienum ledas. Now this arrangement between Canan and Clarke did prejudice the rights of Davidson; for if the personal estate had been applied to the payment of the first lien of Canún, as it was the duty of the sheriff to do, then, the mortgage of Davidson would have come in on the lands. But there is neither justice nor equity in Canan claiming priority of Davidson’s mortgage, prior in date to his judgment, but which lost its priority by not being recorded within six months, and then so managing his levys on the personal property as to take the proceeds from his first judgment, to which it ought to have been applied, to satisfy his second execution, to which it ought not to have been applied. But the argument is, that the goods sold were not the goods levied on by the first execution. If this were made out in proof, which it was not, then another question would arise, the answer to which would be equally fatal to Canan’s claim. From the levy of personal property on his fieri facias to January, 1803, and the levy on his second judgment, which was not obtained until May, 1807, the presumption in law is, that the first judgment was satisfied. If this second execution had been the execution of a third person, the levy being chiefly on perishable articles, grain in the ground and-cattle, it would not stand in the way of a stranger, after such a lapse of time; for it is a wise and just provision of the common law, that where goods levied on by a fieri facias are suffered to remain in the hands of a defendant, a subsequent execution creditor may take them, 4 Dall. 358; and it would have been best to have adhered to this inflexibly. Yet the humaiiity of our judges has laid down a different rule where the levy is on furniture, 4 Dall. 167, 213; a distinction not admitted in the Circuit Court of the United States for this district, nor in the Supreme Court of the United States: a distinction which is contrary to the general policy of the law, and which has been productive of great abuse, as far as the decisions have gone. I am not yet prepared to depai’t from them, but I cannot believe it has been ever carried so far as to keep up the lien for ever, or for an unreasonable time, four years, and put it in the power of a plaintiff and defendant to keep the world at bay, and so cloak up the levy as to shift it from one execution to another, and make it a binding levy at first and then extinguish it, to throw it back on the land to the prejudice of an intervening judgment: and Í think the court widely erred in the law on this subject, when they instructed the jury, “that if Canan had no notice of Davidson’s mortgage until he put it on the record, then he had the first lien against the land, and the land stood bound for the payment of that lien, and he could not be required by the mortgagee to proceed against the personal property: he was at liberty to proceed, or not to proceed, at his pleasure. But if he did so far as to issue a fieri facias and make a levy, he might give indulgence from time to time to the defendant, or might enforce a sale at his option: he was to be the judge in his own case how and when he was to proceed. There existed no privity between Davidson and his assignees and John Canan, by which they could control him in the management either of his judgment or execution. I cannot discover any principle that would, under the circumstances of the case, prevent Canan and Clarke from appropriating the proceeds of the personal estate to which of the two executions in the hands of the sheriff they pleased. Such appropriation is consistent both with law and equity.”

To the first part of this proposition there can be no objection. The mortgagee cannot compel him to make his election, but when he has made his election, he is bound by that election. His debt is satisfied, either wholly or partially, so far as the proceeds of the personal property will go. He has either satisfaction, or the means of satisfaction, in his own hands; his debt at law is satisfied by the levy; and it is against every rule of equity, that having the fund in his own hands, — a fund which he has elected to resort to, — he should relinquish it to the prejudice of a third person’s right.

Canan never could have proceeded to levy the lands by a fieri facias, until he had sold the goods levied on; and then his fieri facias would have been for the residue. By the seizure of the goods the debt was discharged, as far as the value. In fact, the goods levied on are the goods of the sheriff, and until the sale are supposed to be in his possession, and he may maintain trover for them, which is an action of property as well as possession, though a special property may be sufficient.

It is against all law and practice, that a plaintiff can withdraw his levy on personal property, to come in on the proceeds of lands sold by a plaintiff before he has exhausted his levy, and returned his writ to the court, stating how much were the proceeds of the levy.

It is the opinion of the court, that the plaintiff has sustained fully his exceptions to that part of the charge of the court of which he complains.

Judgment reversed, and a venire facias de novo awarded.  