Massey v. Farmers' Bank

1 Del. Ch. 399

• Court: Court of Chancery of Delaware
• Decided: February 15, 1831
• Status: Published

Opinion

Johns, Sr., Chancellor.

This is a bill for a perpetual injunction to stay proceedings at law and to protect the title of a bona fide purchaser of a chattel real, to wit, a term for years, purchased at a public sale by the administrator of the deceased lessee. The protection is sought against the claim of a judgment and execution creditor, who contends that he has now the right, by virtue of his execution, to sell the same term for years, for the purpose of satisfying his judgment against the lessee. The ground taken by the judgment creditor is, that the levying of the execution gave him a lien upon' the chattel real, with a right to sell it, which right has not been divested by the sale made by the administrators.

The judgment did not, of itself, create a lien. For this is a chattel real; and, as to such interests, a judgment is no lien, but an execution binds from its delivery to the sheriff, provided the execution is levied on the chattel before the return day of the fieri facias, and the sheriff does no act whereby the property is discharged from this liability.

1. The first question is, was this chattel real levied on by the sheriff? It does not appear to have been levied on as personal estate ; for it is not mentioned nor appraised, as it ought to have been. The general return on the writ “ levied on goods in the hands of the administrators amounting to $-” cannot be considered as a levy on the term for years, without more. But the sheriff’s return is not only of a levy on goods, but' there is also a levy on land, as per inquisition annexed. The inquisition embraces the house and seven acres, and levies upon it as real estate. ■ Here was a clear mistake; and a question arises, what is the legal effect ? The sheriff omits to levy on it as personal estate, and the property is levied on as land. This mistake of the sheriff, and the ignorance of the creditor in the execution as to the debtor’s title in the house and lot, cannot make this a levy on the leasehold estate; for that would make the sheriff’s act operate contrary to what he intended. The sheriff only levied on the house and lot as' land; and he could not have considered himself responsible for it, as if he had levied on it as personal property, since he did not know that it was personal property.

2. But suppose there was a legal levy on this house and lot as a chattel, still there remains the question, whether the acts of the sheriff have divested his right to sell this property, that is, George B. Massey’s interest therein ?

Supposing the sheriff to have levied on the term for years as a chattel, still he had power to permit the administrators to sell it. With respect to the goods embraced in the inventory and appraisement, it appears by the return that they were, when levied on, in the hands of the administrators ; and it also appears that after the levy the administrators were permitted to retain possession of them and to sell them, though on what terms they were allowed to do so is not proved satisfactorily. By this conduct the sheriff became liable to the execution creditors for the value of the goods. If the sheriff also permitted the administrators to sell the term for years, then, on the same principle, he became liable for its value to the execution creditor, supposing the sheriff to have made a legal levy upon it, unless he can be discharged on the ground of mistake caused by his ignorance of the nature of Massey’s title to the house and lot.

Sarah Massey, the purchaser of the house and lot at a public sale made by the administrators, must have as good a title to this term for years as any purchaser of goods had to articles purchased at a sale by the administrators of other parts of the personal property. The abandonment of any claim by the sheriff, in the case of a public sale, is sufficient to protect innocent purchasers who buy fairly and pay the purchase money. The general power of administrators is to sell all personal property. If any person has a prior right or lien, and, having knowledge of a public sale of the property, does not give notice of his claim, the neglect is in the nature of a fraud on purchasers, and they ought to be protected against such a claim.

It is not a question whether the Bank ought to have given notice of their claim at the sale, in order to guard purchasers against imposition. The Bank had its remedy against the sheriff and his sureties, if, after a levy, the sheriff did not do his duty, but chose to permit the administrators to sell. The Bank, in such case, could not resort to the administrators, but the liability of the administrators was to the sheriff for the value of the property he permitted them to sell, and the Bank must resort to the sheriff. To the amount of the value of the personal property levied on, the Bank, quoad the debtor in the execution, is satisfied. The debtor is discharged, and the pheriff becomes the debtor.

I am, therefore, of opinion that the complainant’s title ought to be protected. Let the injunction be made perpetual.

This decree was affirmed by the High Court of Errors and Appeals, at the June Term, 1833. See 1 Harrington’s Rep. 186.