
    Zug and Others v. Laughlin and Others.
    Weit oí Venditioni Exponas.—It is the right of an execution plaintiff, on the return of an execution against the property of the execution defendant levied upon, but not sold, to have a vendi, with a conditional fieri fados added thereto, but the writ is not void if it is omitted. Page 174.
    
      Levy—Lien oe.—Under sections 453-454, 2 G. & H. 244, when any property-levied on remains unsold, and the sheriff returns the execution and appraisement, stating in his return the failure to sell, and the cause of the failure, the lien of the levy upon the property shall continue. The continuance of the lien is not limited by time, but an unreasonable delay would be a matter of grave consideration in a race of diligence between execution plaintiffs'. Page 177.
    Levy—Lien oe.—df a creditor seize the goods of his debtor on an execution, and suffer them to remain in his hands, the execution is deemed fraudulent and void as against a subsequent execution. Page 178.
    APPEAL from the Floyd Circuit Court.
   G-regoby, J.

On the 28th of September, 1861, Clayton French, Samuel H. French, and Fdwin Morey, whom we shall designate as French &¡ Co., recovered a judgment, in the Coiirt of Common Pleas of Floyd county, against John Bushnell, for $2,251.43; on the 29th of October following, two other judgments were rendered against Bushnell in the Floyd Circuit Court—one in favor of James Laughlin for $3,359.99, the other in favor of Charles Or. Hussey and Thomas M. Howe for $633.10. Executions were issued on these judgments, and placed in the hands of Wilcoxson, sheriff of Floyd county, as follows: on that in favor of French § Co., December 2, 1861; on that in favor of Laughlin, November 29, 1861; and on that in favor of Hussey § Howe, December 6, 1861.

By virtue of these three executions, and some five others not necessary to notice, the sheriff’ on the 23d day of December, 1861, made the following levy: “ By virtue of this, etc., I have this day levied on the following described property; to-wit: all the stock in trade of every kind and description of the defendant, John Bushnell, now in the brick building on State street, between Main and the river, including one fire-proof safe and office fixtures, taken as the property of John Bushnell, to satisfy,” etc.

Bushnell was a ship-chandler, and his stock thus levied on consisted of iron, cordage, glass, and a great variety of other articles used in building and fitting out steamboats.

This levy was made under the direction of the attorneys of Laughlin and of French ft Co., and was accompanied by an inventory which described the various articles, but did not specify the quantities of each.

By an arrangement made between the attorneys of the parties having executions in the sheriff’s hands and Bushnell, the latter was to retain the possession of the goods levied on, continue in trade, sell the stock in the regular course of business, and apply the proceeds to the payment of the executions according to their priority. Accordingly, these three executions were returned by order of the attorneys for the plaintiffs in the several judgments as follows : Laughlin’s, May 26; French ft Co.’s, May 28; and Hussey ft Howe’s, May 29, 1862. On the day Hussey ft Howe’s execution was returned, a vendi was issued upon their judgment; and on the following day like writs were issued in favor of Laughlin and of French ft Co. These last three writs were returned by the sheriff without any sale of the property, upon the orders of said attorneys, as above stated; Laughlin’s on the 17th, and Hussey ft Howe’s on the 24th day of November, 1862.

On the 26th of November, 1862, Hussey ft Howe had an alias vendi issued on their judgment, and on the 13th day of December following like alias writs were issued on the judgments of Laughlin and of French ft Co.

These several writs, issued after the first set, on the judgments in favor of Laughlin, French ft Co., and Hussey ft Howe, instead of being the executions directed by statute, (2 O. & II. 244, secs. 453, 454,) were the ordinary writs of venditioni exponas.

On the 28th day of January, 1862, Christopher Zug, Charles H. Zug, Jacob Painter, and Benjamin H. Painter, who, for brevity, may be styled Zug ft Co., recovered two judgments, in the Court of Common Pleas of Floyd county, against Bushnell, amounting to $1,077.85, and on the 13th of January, 1863, sued out writs of fieri facias thereon, which, with the writs of vendi on the judgments in favor of Laughlin, French ft Co., and Hussey ft Howe, came to the hands of Stewart Sandford, successor of Wilcoxson, sheriff of Floyd county.

On the 22d day of January, 1863, Hussey $ Howe abandoned their vendi, and procured and delivered to said sheriff & fieri facias upon their judgment.

In the mean time, Bushnell had carried on his trade, buying and selling, and had to some extent mixed new goods with those levied on by Wilcoxson, the former sheriff.

Sandford, the present sheriff, was directed to levy the writs of fieri facias of Zug Go., as well as the one in favor of Hussey £ Howe, which afterward came to his hands on the new goods. But having nothing to guide him, other than the recitals of the writs of vendi, Sandford was unable to distinguish the new from the old goods. It should be stated in this connection that the inventory made by Wilcoxson was not recited in the writs of vendi, nor did the same ever come to the knowledge of Sandford.

The sheriff, Sandford, on the 13th day of January,,1863, levied the writs of fieri facias of Zug Go., on the entire stock in trade of Bushnell, including the old as well as the new goods; caused a proper inventory and appraisement to be made thereof; advertised and.sold the same on the 9th day of February, 1863, by virtue of these writs oí fieri facias, and the one in favor of Hussey Howe, and the writs of vendi of Laughlin and French § Go., and some others that need not be named, and realized from such sale |4,353.24; $4,157.80 of which was paid into the Floyd Circuit Court by the defendant Sandford, that being the net avails of such sale after deducting costs, etc.

This suit is brought by Laughlin against Sandford, French, French $ Morey, Zug § Go., and Hussey § Howe, together with The Nao Albany Insurance Company, who disclaimed all interest in the subject .matter in controversy.

The relief sought is an order of distribution of the proceeds of the sheriff’s sale among the parties entitled thereto.

The court helow ordered the clerk to pay: 1. The costs of this action; 2. Render to Zug ¡j¡ Co. and to Hussey $ Howe the sum of $450, and a porportionate share of the costs to be applied upon their writs in the order of the priority; and, 3. Render and pay over the balance remaining in his hands unto Laughlin and French $ Co., to be applied upon their writs respectively in the order of their priority.

Zug $ Co., and Hussey $ Howe, appeal to this court.

The evidence is set out in the record. "We are at a loss to see upon what principle the ruling of the court below can be sustained.

The appellees have filed no brief, and we are left to infer, from the argument of counsel for the appellants, the questions mooted in the Circuit Court.

There were several questions presented in the progress of the trial. One is that the writs of vendi, issued in favor of Laughlin and French £ Co., are void for not complying with the statute on that subject, and for this reason, Hussey Howe and Zug § Co. objected to their introduction in evidence; the court below overruled the objection, and admitted them in evidence. We think this ruling is right; this statute is directory. It is the right of an execution plaintiff, on the return of an execution against the property of the execution defendant, levied but not sold, to have a vendi, with a conditional fieri fiadas added thereto, so as to give a more complete remedy; but it was evidently not the intention of the legislature to make a writ void that did not, in this respect, comply with the statute.

Another is, that the levy made by sheriff Wilcoxson, by virtue of the executions in favor of Laughlin and French § Co., is void for uncertainty in not sufficiently describing the goods levied upon. We think this objection not valid. The description taken in connection with the inventory and appraisement, in our opinion, is sufficient, and was perhaps as definite as the nature of the subject matter would admit of; at least it is not void for uncertainty.

We have looked through the evidence, and find nothing that, in our opinion, tends to connect Zug $ Go. with the arrangement by which Bushnell was left in possession of the goods after the levy, with power to sell and dispose of them in the usual course of business, and apply the proceeds, etc.

It is true that Bushnell, on the 21st day of September, 1861, executed a deed of trust to one 'William B. Lent, assigning to him his entire stock in trade, to secure certain creditors of Bushnell, among others Zug ¡j¡¡ Go.; but • there is no evidence that Zug $ Go. ever gave their assent to this assignment, and indeed, so far from doing so, long after this trust was created for their benefit, they bring suit on their claims against Bushnell, and proceed to judgment. There is evidence tending to show, that •the cloud created by this assignment was one of the reasons for the delay in selling the goods levied upon by virtue of the executions in favor of Laughlin and French § Go.; but Zug Go. in no way were instrumental in bringing about that delay. Whatever may have been done by the attorneys, who obtained their' judgments, could not, in our opinion, prejudice them. The power and duty of an attorney are plainly prescribed by statute. 2 G-. & H. 827-828, secs. 771-772. There is no evidence that Smith $ Kerr had any authority from Zug $■ Co., other than that of an attorney as such; and, indeed, both Smith ^ Kerr swear that, in making this arrangement fox-delay, they did not act for Zug $ Co., but only fox- those of their clients having executions in the hands of the sheriff at the time.

On the 24th day of February, 1862, French, French § Morey brought an action in the Court of Common Pleas of Floyd county against Lent, to set aside this assignment as fraudulent and void as against creditors. The ease was continued, from term to term, until the 12th day of January, 1863, when Bushnell was made a defendant by an amended complaint. On the 5th day of February, 1863, the cause was tried, and this assignment set aside as fraudulent an,d void.

"We do not see how this proceeding is any legal excuse for the arrangement by which Bushnell retained .the possession of the goods levied on, with power to sell and dispose of the same, and apply the proceeds to the payment of the senior execution liens. It was a good reason for taking the goods out of his hands, but not for leaving them under his control, with power of disposing of them. French $ Go. say to Bushnell, you have made a fraudulent assignment of your property, therefore we will leave ' you in possession, with power of disposition for one year and one month, while we carry on a litigation to set aside your fraudulent act; you have inspired us with a confidence rarely existing between a creditor and his debtor in failing circumstances.

In our opinion, Hussey Howe are not in a condition to be benefited in a race of diligence with the other execution creditors of Bushnell; they were parties to the arrangement for delay, and can not be benefited by it; they voluntarily abandoned their levy, and took their chances at the new goods not covered by the old levy. The proof is not clear as to the confusion of goods, nor as to the amount of new goods at the time of the levy of the 13th of January, 1863, but we infer that the court below came to the conclusion that, with the use of proper diligence, the new goods could have been distinguished from the old, and that there was realized from such execution sale of the new goods $450, and therefore not enough to pay the executions of Zug $• Go., which came to the hands of the sheriff nine days before the fieri facias of Hussey § Howe was issued.

And as we understand the order made by the court below, this $450 under that order would go to Zug &; Go., as their executions are prior to that of Hussey § Howe.

It is -claimed that some days elapsed between the return of the writs of vendí of Laughlin and French § Go., and the issue of the writs of vendí under which the sale was made, ■ and that thereby they lost their lien on the goods levied upon. These writs of vendí were returned on the 17th day of November, and new writs of vendi were issued on the 13th day of December; twenty-six days elapsed between the return' and issue.

Our statute provides that, “when any properly levied on remains unsold, it shall be the duty of the sheriff, when he returns the execution, to return the appraisement therewith, stating in his return the failure to sell, and the cause of the failure. The lien of the levy upon the property shall continue, and the clerk, unless otherwise directed by the plaintiff, shall forthwith issue another execution, reciting the return of the former execution, the levy and failure to sell, and directing the sheriff to satisfy the judgment out of the property unsold, if the same is sufficient; if not, then out of any other property of the debtor subject to execution.” 2 G. & II. 244, secs, 453, 454. By the previous statute, (Revised Statutes, 1843, p. 750, sec. 421,) “ such levy and return constituted and continued a lien on the property remaining unsold, by virtue of which the same was held and sold on a writ of venditioni exponas, if issued before the return day next after the return day of such previous execution.” Wolf v. Wolf, 4 Ind. 255. The difference between the two statutes seems to be, that the continuance of the lien is limited as to time by the' latter, and not by the former.

An unreasonable delay in issuing the vendi, under the present statute, would bo a matter of grave consideration in a race of diligence between execution plaintiffs; but, in our opinion, the delay in this case of twenty-six days between the return and issue, does not ipso facto divest the lien of the executions and levy of Laughlin and French Go'.

On the question of the race of diligence between Zug $ Co., and the other execution creditors of PushneU', we hold the rule to be, “ that if a creditor seize the goods of his debtor on' an execution, and suffer them to remain in his hands, the execution is deemed fraudulent and void, as against a subsequent execution.”

This is the rule in England, (1 Lord Eaymond, 251; Edwards v. Harten, 2 Term Eep. 596,) and it has been followed by most of the states.

In the case of Storm and Another v. Woods, 11 Johns. 109, this rule was applied in the absence of all actual fraud; the court said: “Whether the sheriff’ is chargeable of not with neglect of duty, depends upon the fact whether his conduct was known or approved of by the assignees of the judgment; and, whether they knew in what manner the levy had been made, may be questionable; but that they did know that the property was left in the possession of Hilton, can not admit of a doubt. Eo actual fraud was intended, by them. They undoubtedly supposed they could postpone proceedings under their execution until pressed on by younger ones, and still retain their priority. Motives of humanity mig’ht have influenced them to this indulgence; still, it was not warranted by the sound and salutary principles of the common law. The case of Levy v. Wallis, 4 Pall. 167, decided in the Supreme Court of Pennsylvania, which has been referred to, admits the English rule to be, as understood and recognized by this court; but it is said that sentiments of humanity, and the peculiar necessities of the country, have induced the court in Pennsylvania to depart from it. In that state, however, the soundness 'of their own rule has been questioned, and much shaken in later cases. See 4 Pall. 168, note 1.” In Kellogg v. Griffin, 17 Johns. Rep. 274, this rule was applied to a case in which the delay under the direction of the execution plaintiff was from January to the May following.

This rule, somewhat modified and restricted, but broad enough to embrace the facts of the case at bar, is now recognized in Pennsylvania. Farl’s Appeal, 13 Penn. State Eep. (1 Harris,) 483; Keyset’s Appeal, 13 Penn. State Eep. 409.

Costs against appellees and Hussey Howe.

Thomas L. Smith and M. C. Kerr, for appellant.

The order of the Circuit Court directing the clerk to pay, 1. The costs of this action; 2. Eender to Zug, Painter § Co. and to Hussey § Howe the sum of $450, and a proportionate share of the costs to he applied upon their writs in the order of their priority, is affirmed, and the residue of said order is reversed; cause remanded to said court, with directions to ascertain the balance due Zug, Zug, Painter § Painter, on their judgments and executions for principal, interest, and costs, after the proper application, under the above order, of said $450, and the payment of the proportionate share of costs as above ordered, and then to order said balance so found due them, to be paid in full to said Zug, Zug, Painter <f- Painter, out of said money so paid into court; and that the residue be rendered and paid to said Laughlin and French, French $ Morey, to be applied upon their writs respectively in the order of their priority.  