Leopold v. Godfrey

50 F. 145

• Court: U.S. Circuit Court for the Northern District of Illnois
• Decided: January 15, 1882
• Status: Published

Opinion

Blodgett, District Judge.

The evidence satisfies me that the sale by Godfrey to his son and Shaut was void for want of consideration; no cash having been paid, and the $6,000 worth of notes which were given not having been taken up. It will therefore be set aside as a fraud upon the creditors.

As to Mrs. Godfrey’s claim, the rule is well settled that when executions issue from the state and federal courts, if there be no lien by the judgment, the one under which a seizure is first made must prevail, and held the property. Here there was no lien by virtue of the judgment, and, as the liens of sheriff and marshal were concurrent, the one who perfected his lien by actual levy, as did the marshal, must hold. The cross bill of Mrs. Godfrey must therefore be dismissed.

As to Peacock’s claim for rent, the law in this state is that the landlord had no lien, under the statute or the covenants in his lease, upon the personal property of his tenant prior to the actual levy of his distress warrant. As the levy of the marshal was prior to that of the landlord, Peacock’s cross bill must also be dismissed. The goods having been sold in the mean time under an interlocutory order, and the proceeds paid into court, a decree will be entered that the fund, less costs taxed, be paid to the complainant.