The opinion of the court was delivered by
The Chief Justice.
The controversy in this cause arises between the execution creditors of Mackey Williams, and relates to the proceeds of the sale of certain personal property of said Williams, made by the sheriff of the county of Cape May, in the month of December, 1848. At the time of the [152]*152sale, there were in the hands of the sheriff three writs of fieri facias against Williams. The first execution, at the suit of Fifield & Matthews (the defendants in certiorari) was delivered to the sheriff on the 27th of January, 1848. The second execution, at the suit of James W. Caldwell, administrator, was delivered to the sheriff on the 23d of November, 1848. The third and last execution, at the suit of Moore & Mellon, was delivered to the sheriff on the second day of the sale. The plaintiffs in the second and third executions claim the proceeds of the sale of the defendant’s property in preference to the plaintiffs in the first execution. The question presented for consideration is, whether the plaintiffs in the first execution have lost their priority or forfeited their title, in whole or in part, to the proceeds of the sale.
The certiorari is accompanied by a written agreement, between the counsel of the different parties, that all formal objections to the proceedings shall be waived; that the judgments, executions, inventories, depositions, rules and orders of the court below shall constitute the state of the case upon which the same shall be argued; that this court shall adjudge both-upon the law and the facts of the case, as if the said several judgments had been originally entered, and all subsequent proceedings thereon had in this court. The case will be considered in accordance with the agreement of the parties. This will account for the apparent anomaly of a review by this court upon certiorari, not only of questions of law but of the merits of the case upon the evidence.
I. The evidence in the cause does not establish actual fraud committed or meditated by the plaintiffs, Fifield and Matthews, in the inception of their judgment. They were wholesale grocers in the city of Philadelphia. The defendant was a country merchant, carrying on business at Dennisville, in the county of Cape-May, and a customer of the plaintiffs. At the date of the bond and warrant of attorney upon which the judgment is entered, it appears in evidence that Williams was indebted to Fifield & Matthews $200 upon a former judgment, and about $960 upon an account current for goods sold and delivered. Either in part payment or as collateral security for [153]*153part of the account, the plaintiffs held Phipps & Shcder’s note for §812.55, which had been assigned to them by the defendant, but which had not yet arrived at maturity. There is a conflict in the evidence as to the motive which induced the plaintiffs to take judgment for the entire debt, including the sum secured by the note. By an account rendered to the defendant on the 21th of December, 1847, about a month previous to the date of the bond, they had given Williams credit for the amount of this note, deducting the discount, and leaving a balance due on the account of §117.45. Williams testifies that, at the date of the judgment, there was but about 8300 due from him to the plaintiffs, and that the design of taking the judgment for a larger amount than was actually due was to secure future advances, as well as the existing indebtedness, and that the defendant’s liability on the note was resorted to, to enable the plaintiffs to make the necessary oath on entering the judgment. It is clearly in evidence, however, that Williams himself desired that the note should not be credited on the account, alleging that it did not belong to him, and that he would redeem it before its maturity. It is shown, moreover, that Williams subsequently admitted that the amount for which the bond was given was justly due to the plaintiffs, and that, on the second of May, 1848, after satisfying the whole account accruing subsequent to the date of the bond, he paid on account of the judgment §383.61, a sum more than sufficient to cancel the entire debt, independent of the amount covered by the note. The mere assignment by Williams to his creditors of the note of a third party on account of his indebtedness, in the absence of an express agreement to that effect, would not operate .as payment of the account. Its utmost effect, would be to postpone the time for payment of the account until the maturity of the note. There is no satisfac-' tory evidence of any such agreement between the parties. But admitting the existence of such agreement, there was neither fraud nor illegality in drawing that agreement by mutual consent, in holding the note as collateral security merely, and taking judgment for the entire claim of the plaintiffs. It is apparent that at the time the bond was .given the debtor ’ [154]*154was anxious for further advances, and that the creditors were willing to make them, upon receiving adequate security. It is but just and reasonable to conclude that a course was adopted, by giving the judgment for the entire debt, and leaving the note for collateral security, which should effect the object of the parties in consistency with law and justice. The coloring attempted to be given to the transaction by Williams is inconsistent with probability, is in direct conflict with the testimony of the witnesses and with his own admissions, and is irreconcilable with admitted facts in the cause. The decided preponderance of the testimony, independent of the oath of the plaintiff, is that the entire debt for which the bond was given was justly and honestly due and owing. If the evidence was more nearly balanced, nay if it be admitted that the scales were in equipoise, the case would not be altered. It requires more than a doubt to destroy the security of a judgment; its invalidity should be clearly established.
II. The debt itself at the time of-the giving of the bond being justly due, is there anything in the subsequent conduct of the plaintiffs which will render the execution constructively fraudulent? It is insisted that though there be no actual fraud, there is legal fraud sufficient to postpone the plaintiff’s execution.
By an attempt on the part of the plaintiffs at concealment. The alleged concealment consists in an understanding that the matter should not be made public, and in directions given by the plaintiffs to the sheriff that he should not make the execution notorious by going to the house of the defendant to make his levy. Concealment is but a badge of fraud; it may be consistent with fairness and prompted by humanity. In the present instance, the debtor was a merchant, to whose business a public knowledge of his embarrassment must necessarily prove disastrous. The plaintiffs in execution had no possible motive to collude with the defendant to enable him to defraud others. The judgment was on record, the execution was in the sheriff’s hands, open and accessible to every one who desired the information. Whatever may have been the strictness of the common law on this point, I know of no [155]*155principle which at the present day in this state requires a judgment creditor, any more than a mortgage creditor, to proclaim the existence of his encumbrance, or which subjects him to the imputation of fraud, and a consequent loss of his security, if he pursue a course the least injurious to the feelings and the credit of his debtor. The conduct of the plaintiffs on the present occasion may have been, and from the evidence of the sheriff upon this point we are bound to presume were, prompted by the best of motives. To construe it as a legal fraud cannot be conducive to the ends of justice, much less to the claims of humanity.
It is further contended that the conduct of the plaintiff in giving to the sheriff, after making his inventory, an absolute stay of execution, in leaving the property in the hands of the defendant, in permitting him to use, to dispose of it, and to deal with it as his own, renders the execution constructively fraudulent. It is conceded that it would be so at the common law and by the laws of many of the states of the American union. But is it so by the law of this state ?
It has been repeatedly decided, and is the well settled law of this state, in direct contravention of the rule of the common law, that the sheriff is not bound to remove goods levied upon, but may leave them in the actual possession of the defendant till the day of sale. Casher v. Peterson, 1 South. 317; Sterling v. Vancleve, 7 Halst. 285; Cumberland Bank v. Hann, 4 Harr. 166.
It is equally well settled in this state that the plaintiff, when, lie delivers his execution to the sheriff, or at any time after-wards, may direct the sheriff not to proceed to a sale without further orders from him, or unless urged on by younger executions, without thereby losing his priority, provided it be done in good faith. Sterling v. Vancleve, 7 Halst. 285; James v. Burnet, Spencer 635; Cumberland Bank v. Hann, 4 Harr. 166.
The point mainly relied upon to establish the legal fraud of the plaintiffs in the execution is the fact sworn to by the defendant in execution, that the defendant, “ with the knowledge and consent of the plaintiffs in execution, bought and [156]*156sold goods out of the store, and purchased and sold other property, and exercised over the whole thereof the same control as he did before the execution of the bond.” Taking this evidence to be true, it amounts substantially to this, that the defendant in execution, being a merchant and largely engaged in business, continued his business after the levy of the execution as before, with the knowledge and assent of the plaintiffs.
The seventh proposition resolved by the court in The Cumberland Bank v. Hann was, that “if the defendant is permitted, with the knowledge and consent of the plaintiff, express or implied, not only to retain the possession of the property, and to use and enjoy it for its ordinary and appropriate purposes, as in the case of household goods, but to exercise an unlimited control over all the property levied on, whatever may be its value, to use, sell, exchange, or consume it, as the rightful and absolute owner, it is such evidence of a fraudulent and colorable use of the process of the court, whether the debt be a real and just one or not, as to postpone the execution to younger ones sued out and prosecuted, in good faith.”
. It will be conceded, for the purpose of this inquiry, that the evidence of the defendant in execution brings the present case Avithin the principle of the decision in The Cumberland Bank v. Hann, and that, if the seventh resolution of the court in that case be law, the plaintiffs in the present case have lost their priority.
In the case of Woodruff v. Chapin, decided in the Court of Errors and Appeals at January term, 1851, this question was Amry elaborately discussed by counsel and considered by the court. The case was finally decided upon the question of jurisdiction, Avhich precludes the expression by the court of any opinion upon the laAV of the. case.
It is Avell known, however, that a decided majority of the court entertained the opinion, upon the argument of that cause, that the seventh resolution of the Supreme Court in The Cumberland Bank v. Hann is not law, and that the judgment of this court in Woodruff v. Chapin, rendered in [157]*157conformity with that resolution, would have been reversed upon that point had the case not been disposed of upon a preliminary question. This opinion of the Court of Appeals, not having been pronounced, is not referred to as authority, but as affording a cogent reason for a reexamination by this court of the grounds of its former opinion.
The simple inquiry is, whether permitting a defendant in execution, after the levy, to deal with the property as his own, constitutes a legal fraud, which, without regard to the bona fieles of the transaction, will postpone the execution in favor of a subsequent levy, or whether it simply affords evidence of a fraudulent intent, which may be rebutted.
It must be borne in mind that the principle is well settled in this state, in direct contravention of the rule of the common law, that property taken in execution may be left in the possession and enjoyment of the defendant. If it be consistent with law and with good faith that the execution creditor should permit his debtor to acquire a false credit by holding himself out to the world as the real owner of the property levied upon ; if the creditor may lawfully permit the defendant in execution to use and enjoy the property levied on as his own ; if he may from time to time, for an indefinite period, extend that indulgence, either from motives of humanity or in the hope of securing his debt, though by such means the property levied on be wasted, consumed, or greatly impaired in value, upon what principle can it be maintained that the sale or conversion of any part of the property levied upon by the defendant, in the regular course of his business, ipso facto annuls the execution or avoids the lien. The object of extending indulgence to the debtor, is to allow him an opportunity by his own exertions and the prosecution of his business to pay the debt. But if the property of a man in business, Avhether as a merchant, a manufacturer, or a farmer, be levied upon, he must of necessity, if permitted to pursue his business to any advantage, deal with the property as his own. Goods must be exchanged, the raw material converted into manufactured articles and sold or bartered, the crops of the farm must be gathered and disposed of, the stock must be fed, the labor-* [158]*158ers must be paid ; every revolving season,, if not every successive week, must witness changes in the property levied on destructive of the validity of the lien. If the debtor be permitted to hold and enjoy the property, why should he not be permitted to use it in the only way it can be effectually used to enable him to pay his debts ? If the one is consistent with .fair dealing, why is the other per se fraudulent ? Nor is it per- , ceived how permitting the defendant in execution to continue In the actual possession of his business after levy either hinders, delays, or defrauds creditors. It neither delays nor defrauds a creditor who has no execution if a judgment creditor indulges his debtor, even though the property levied upon be diminished in value, or be consumed or used. If the plaintiff ■in execution may lawfully levy on a part of the defendant’s •property, as he clearly may, why may he not, having levied upon the whole, permit the debtor to sell or dispose of part of ■the property levied on without rendering the levy void as to the residue? The subsequent creditor will be in no better condition if the plaintiff in the first execution either force an immediate sale or.levy on a part of the property, permitting the defendant to dispose of the residue. A subsequent execution , creditor can neither be hindered nor delayed in the collection óf his debt by a prior execution, for he has it in his power at all times to enforce a sale at his pleasure. Undoubtedly the conduct of the plaintiff, in permitting the defendant in execution to use the property levied upon as his own, to consume it, to sell or convert it to his own use, may afford evidence of a fraudulent intent sufficiently strong to postpone the execution. It was so held by this court in Williamson v. Johnston, 7 Halst. 86, and in Matthews v. Warne, 6 Halst. 295. But in neither of these eases was the fact, that the defendant was .permitted to deal with the property levied on, held per se fraudulent. In both cases the evidence was held to be sufficiently strong to establish the fraud. In the former case the court said, the circumstances of the case lead irresistibly to the conclusion that the execution was kept up to give the debtor undisturbed use of the goods and chattels, and to prevent any creditor from taking them away from him by legal process to [159]*159satisfy liis debt. If so, the latter execution must be preferred. This accords with the views of the court in Casher v. Peterson, 1 South 317. C. J. Kirkpatrick, in that case, in delivering the opinion of the court, said, “ If the execution should not be pursued, and a subsequent one be levied on the same property, then it will always be a question whether the first was kept up merely by color and for fraudulent purposes, aud if so, the last shall prevail, but if otherwise, the goods shall be holden by the first levy.”
So by the fourth resolution of the court in The Cumberland Bank v. Hann (4 Harr. 169), it was held, that “if the goods levied upon are left in the defendant’s possession for several years, or an unusual or unreasonable time, and the defendant is permitted to use and enjoy them as before the levy, it may be evidence of a fraudulent intent in law, more or less strong according to the circumstances, and of which the court may judge whenever the question arises.” The same rule must in principle be extended to the sale, exchange, or conversion of part of the property levied on by the defendant. It will amount to evidence more or less strong, according to circumstances, that the execution is kept on foot for fraudulent purposes, but will not per se postpone the execution in favor of a subsequent execution. The rights of a bona fide purchaser of the goods levied upon from the defendant in execution will not be interfered with. If the defendant is permitted, with the assent of the plaintiff, to deal with the property in execution, sales made by the defendant must be held valid as against the lien of the execution. The circumstances in this case do not show that the first execution was kept on foot for fraudulent purposes, and it ought not, therefore, to be postponed in favor of the subsequent executions merely because the debtor, iu pursuit of his regular business, has been permitted to sell, exchange, or convert to bis use portions of the property levied upon.
III. It is further objected that there was no valid levy under the first execution, because the sheriff made the levy without iiaving the property in his view or under his control. The defendant, with the concurrence of the plaintiff, furnished the [160]*160sheriff an inventory of his property, real and personal, which, the sheriff endorsed-on the execution, and returned as his levy. Whether this constitutes a valid levy, was much discussed in the case of Lloyd v. Wyckoff, 6 Halst. 218. Justice Ford, in that case, held it to be a well established principle in this court, that if an officer receiving an execution, makes in virtue of it a first and true inventory of the debtor’s goods, and files it at the return of the writ, it amounts to a coustrnctive seizure of possession of such goods, -whereby they become appropriated to the satisfaction of such execution, and the officer acquires the property so as to maintain trespass or trover against any person. taking it away. From this opinion, Mr. Justice Drake dissented, and held that “ the making of an inventory through the information of others, or receiving one from the defendant, is not a sufficient levy. The sheriff must see the property, and have it under his control, and know what he has thus actually or constructively taken, in order to perfect his levy.”
In Cliver v. Applegate, 2 South. 480, Justice Southard said the mere fact of the officer’s seeing the goods when he makes the levy, can add nothing to his rights or his responsibilities.
In Wintermute v. Hankinson, 1 Halst. 140, Kirkpatrick, C. J., said the constable must make an inventory, and then only is he considered as taking possession of the goods of the defendant. And Ford, J., said a constructive possession might arise from the defendant’s delivering to the constable an inventory of his goods.
It is well settled in this state that it is not necessary that the goods should be taken into the actual custody of the sheriff, or that they should be removed out of the possession of the defendant. It is enough if there be an inventory made by the sheriff, having the property in his view or under his control. The goods being left in the possession of the defendant, he becomes the bailiff of the officer, and the possession of the defendant the possession of the officer. If the inventory be made with the knowledge and assent of the defendant, if he himself furnish the inventory for the purpose of a levy, the property is transferred to the possession of the officer, and [161]*161placed under his control as effectually as if the inventory were made in view of the goods. There is evident propriety, in order to guard the rights of the plaintiff in execution, in the sheriff’s seeing the goods. But if the plaintiff be satisfied with the fairness of the inventory and the good faith of the defendant, if lie assents to a levy by inventory, it is not perceived that, in any aspect of the case, the levy can be invalidated or the constructive possession of the sheriff, and his right to the property levied upon, drawn in question by reason of his not seeing the goods at the time of making the inventory: The principal objections urged by Justice Drake against the validity of a levy made by means of an inventory do not apply where the inventory is furnished by the defendant with the assent of the plaintiff. It is unnecessary now to consider the question, whether an inventory made by the officer of goods not within his view or under his control, without the knowledge or assent of the defendant, be a valid levy.
The decision of this court in The Princeton Bank v. Crozier & Moore, 2 Zab. 383, is limited to a particular species of property ; it does not at all conflict with the views now expressed.
It is clear that the subsequently acquired property is not bound by the levy under the plaintiff’s execution. The proceeds of the sale of that part of the property were rightfully appropriated to the subsequent executions. Matthews v. Warne, 6 Halst. 309; Lloyd v. Wyckoff, 6 Halst. 222; Cook v. Wood, 1 Harr. 254.
The plaintiff’s execution was properly levied upon the standing timber purchased by the defendant, with the right of cutting it within a specified time, under what is termed in the evidence a timber lease. The right of the defendant in that timber was a mere chattel interest. He had no interest in the land further than was necessary to authorize him to sever the timber, and carry it away. Nor was the lien of the plaintiff’s execution lost by the subsequent cutting of the timber, with or without the assent of the plaintiff in execution. The evidence does not show that the wood upon the land included in the timber lease was cut prior to the levy. There is no room, [162]*162therefore, for the application of the objection, that the levy upon the timber lease would not include the wood previously severed and lying upon the land -at the time of the levy.
The receipt of the 2d May, 1848, for $383.61, given by Fifield & Matthews to Williams, on account of the execution, must be credited accordingly. The execution having been so far satisfied, it was not in the power of the plaintiffs, even with the defendant’s consent, by cancelling the receipt to impart new vitality to the judgment, in order to cover subsequent advances, to the prejudice of subsequent execution creditors.
The order of the court below must be in all things affirmed, with costs.
Cited in Clapp v. Ely, 3 Dutcher 598; Kirkpatrick v. Cason, 1 Vr. 332; Dean v. Thatcher, 3 Vr. 475.