McHale v. Westover

101 Ill. App. 276, 1902 Ill. App. LEXIS 604

• Court: Appellate Court of Illinois
• Decided: March 18, 1902
• Status: Published

Opinion

Mr. Justioe Waterman

delivered the opinion of the court.

It did not appear upon the trial that the plaintiff in the execution gave directions to the sheriff not to levy, but he did agree with the execution debtor that no levy should be made and that he should have until September (more than a month), in which to pay. The sheriff in the meantime did not levy; under the agreement he ought not to have levied and appellant ought to have instructed him not to levy.

The Supreme Court of this State in Sweetser v. Matson, 158 Ill. 568, directly held that although an execution is neither taken out nor used by a creditor for the purpose of hindering, delaying or defrauding creditors, and though the postponements of sale were reasonable and proper and did not in fact in any manner injure or tend to injure, delay, defraud or hinder the plaintiffs in junior executions or any other creditor of the execution debtor in the collections of demands against him, nevertheless the simple postponement of sale by direction of the execution plaintiff rendered the lien of his execution dormant and gave the lien of a junior judgment preference. And the court, quoting from Freeman on Executions, say:

“ An execution may he avoided by such conduct on the part of the plaintiff as shows an improper use of his writ, though the motives influencing such conduct, instead of being fraudulent, were grounded in kindness and charity toward the defendant, and free from the slightest design to injure others.” * * *

It is insisted that this rule applies only to the rights of junior executions; but the Supreme Court in the same case say:

“ The lien of an execution is designed to assist the plaintiff while he is seeking to enforce the writ. If at any time he is shown not to be seeking such enforcement, then, during such time, he is without any execution lien, and he is liable to lose the benefit of his writ through the sale or incumbrance of the defendant’s property or by the operation of a junior writ.”

The dormancy thus created, it is held, applies in favor of sales and incumbrances as well as the lien of junior executions.

We do not regard the acts of appellee as estopping him from claiming the superiority of his lien. Indeed, that seems to have been his plainly manifested intention, and the agreement.

Finding no error in the record the judgment of the Circuit Court is affirmed.