Mr. Justice Bailey
delivered the opinion of the court:
The eighty-seventh section of the statute in relation to practice in courts of record provides, that when any final determination shall be made by the Appellate Court, as the result, wholly or in part, of a finding of the facts concerning the matter in controversy different from the finding of the court from which the cause was brought by appeal or writ of error, it shall be the duty of the Appellate Court to recite in its final order, judgment or decree the facts so found, and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause. In this case the Appellate Court has found the facts upon which its judgment is based, and has recited those facts in its final judgment, and it is insisted that recital is conclusive in this court as to all the facts in the case.
It is urged, however, with much earnestness, that the section of the statute here referred to is not aj)plicable to this case, for the reason that there was not, either in the Appellate Court or in the trial court, any substantial controversy as to the material facts, and that the judgment of the Appellate Court, therefore, was not, and could not have been, the result, either wholly or in part, of any finding of facts different from the finding of the trial court, but only of a difference of opinion between the two courts as to the legal consequences of facts about which there was really no controversy.
It must.be admitted that the power of the Appellate Court to find and recite the facts in such way as to make its recital the exclusive evidence of what the facts in controversy are, is purely statutory, and can be exercised only in those cases to which the statute applies, and there seems to be much reason for the contention that where the facts are not really in controversy there can be no occasion for the Appellate Court to find and recite them in its final judgment. In such case, its determination can not, in the nature of things, result from a difference between its finding and that of the trial court as to the facts, and consequently no case is presented which is within either the letter or intention of the statute.
It is urged in this case that the practical objection to accepting the recital of facts found in the final judgment of the Appellate Court, instead of taking them as they appear in the record of the trial court, arises, not so much from any inaccuracy in the recitals of the Appellate Court, so far as they go, as from the omission, as the plaintiffs insist, of various material and undisputed facts which appeared before the trial court. If, then, the findings of the Appellate Court are to be taken as the final, plenary and conclusive recital of all the facts in the case, it is insisted that the plaintiffs will now be deprived of the benefit of the omitted facts, though proved at the trial and not controverted.
But while we are disposed to think that there is much force in the contention, we are inclined to base our decision solely upon the facts as recited in the judgment of the Appellate Court. It appears from that recital that the nine executions in favor of the Hibernian Banking Association, Nano Murphy and E. W. Price were placed in the hands of the defendant, as sheriff, January 8,1890; that on the same day the defendant levied those executions upon the two stocks of goods in question; that he advertised the same for sale on January 22, 1890, but postponed the sale to January 29, and again to February 8, and again to February 11, and finally to February 13, at which last mentioned date the "Wabash avenue stock of goods -was sold, the Blue Island avenue stock being sold, after similar postponements, on February 15. It is further recited, in substance, that these several postponements of the sales were made, as aforesaid, b;r the defendant, with the consent of the execution debtor, and at the request of the plaintiffs in the executions, with the hope that the execution debtor might make some arrangements with his creditors and for his benefit.
On the fifth day of February, which was pending the postponement from January 29 to February 8, the execútion of the plaintiffs in this suit came into the hands of the defendant, as sheriff, and the question is, whether at that date -the senior executions were, or thereafter became, as against the junior execution, dormant, so as to give to the junior execution priority of lien.
The theory upon which it is claimed that the senior executions became dormant is, that the several postponements of the sale, made, as-they were, at the request of the execution creditors, for the benefit of the execution debtor, and for the purpose of aiding him in making some arrangement with his creditors, constituted an employment of the writs for an object inconsistent with their nature, and were such a perversion of them from their legitimate purpose as rendered them fraudulent and void as against other creditors.
It is true the Appellate Court found, ás a matter of fact, that the senior executions were not taken out or used by the plaintiffs therein, or by the sheriff, for the purpose of hindering, delaying or defrauding any of the creditors of the execution debtor, and that the postponements of the sale were reasonable and proper, under the circumstances, and did not, in fact, in any manner injure or tend to injure, dela3r, defraud or hinder the plaintiffs in the junior execution, or any other creditor of the execution debtor, in the collection of their demands against him. If the present case is one in which the Appellate Court was required by the statute to find the facts and recite the same in its final judgment, it must, of course, be conceded that this finding is conclusive that in the several postponements of the sale there was no fraud in fact,—that is to say, there was no actual intention on the part of the plaintiffs in the senior executions, or of the sheriff, to hinder, delay or defraud other creditors,— and that the postponements of the sale did not, in fact, have that effect. But it is clear that the finding of the Appellate Court upon the question whether the use made of the executions was fraudulent can be given no effect beyond this. Whether there was fraud in law,—that is to say, whether fraud resulted, as a legal consequence or conclusion, from the postponements of the sale, made in the manner and for the purposes above stated,—is a legal question, in respect to which the findings of the Appellate Court can have no binding effect in this court.
Does the law, then, from the facts as found, imply such fraud as must be held to be sufficient to postpone the senior executions to the lien of the junior creditors? The general doctrine applicable to this subject is stated by Freeman in his treatise on Executions, as follows: “An execution and its lien may be 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. The only proper use of an execution is to enforce the collection of a debt, and to enforce it with a considerable degree of diligence. To employ it for other objects is inconsistent with its nature, and such a perversion from its legitimate purposes as brings upon it the penalty prescribed by the statute of Elizabeth.
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Mr. Justice Bailey
delivered the opinion of the court:
The eighty-seventh section of the statute in relation to practice in courts of record provides, that when any final determination shall be made by the Appellate Court, as the result, wholly or in part, of a finding of the facts concerning the matter in controversy different from the finding of the court from which the cause was brought by appeal or writ of error, it shall be the duty of the Appellate Court to recite in its final order, judgment or decree the facts so found, and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause. In this case the Appellate Court has found the facts upon which its judgment is based, and has recited those facts in its final judgment, and it is insisted that recital is conclusive in this court as to all the facts in the case.
It is urged, however, with much earnestness, that the section of the statute here referred to is not aj)plicable to this case, for the reason that there was not, either in the Appellate Court or in the trial court, any substantial controversy as to the material facts, and that the judgment of the Appellate Court, therefore, was not, and could not have been, the result, either wholly or in part, of any finding of facts different from the finding of the trial court, but only of a difference of opinion between the two courts as to the legal consequences of facts about which there was really no controversy.
It must.be admitted that the power of the Appellate Court to find and recite the facts in such way as to make its recital the exclusive evidence of what the facts in controversy are, is purely statutory, and can be exercised only in those cases to which the statute applies, and there seems to be much reason for the contention that where the facts are not really in controversy there can be no occasion for the Appellate Court to find and recite them in its final judgment. In such case, its determination can not, in the nature of things, result from a difference between its finding and that of the trial court as to the facts, and consequently no case is presented which is within either the letter or intention of the statute.
It is urged in this case that the practical objection to accepting the recital of facts found in the final judgment of the Appellate Court, instead of taking them as they appear in the record of the trial court, arises, not so much from any inaccuracy in the recitals of the Appellate Court, so far as they go, as from the omission, as the plaintiffs insist, of various material and undisputed facts which appeared before the trial court. If, then, the findings of the Appellate Court are to be taken as the final, plenary and conclusive recital of all the facts in the case, it is insisted that the plaintiffs will now be deprived of the benefit of the omitted facts, though proved at the trial and not controverted.
But while we are disposed to think that there is much force in the contention, we are inclined to base our decision solely upon the facts as recited in the judgment of the Appellate Court. It appears from that recital that the nine executions in favor of the Hibernian Banking Association, Nano Murphy and E. W. Price were placed in the hands of the defendant, as sheriff, January 8,1890; that on the same day the defendant levied those executions upon the two stocks of goods in question; that he advertised the same for sale on January 22, 1890, but postponed the sale to January 29, and again to February 8, and again to February 11, and finally to February 13, at which last mentioned date the "Wabash avenue stock of goods -was sold, the Blue Island avenue stock being sold, after similar postponements, on February 15. It is further recited, in substance, that these several postponements of the sales were made, as aforesaid, b;r the defendant, with the consent of the execution debtor, and at the request of the plaintiffs in the executions, with the hope that the execution debtor might make some arrangements with his creditors and for his benefit.
On the fifth day of February, which was pending the postponement from January 29 to February 8, the execútion of the plaintiffs in this suit came into the hands of the defendant, as sheriff, and the question is, whether at that date -the senior executions were, or thereafter became, as against the junior execution, dormant, so as to give to the junior execution priority of lien.
The theory upon which it is claimed that the senior executions became dormant is, that the several postponements of the sale, made, as-they were, at the request of the execution creditors, for the benefit of the execution debtor, and for the purpose of aiding him in making some arrangement with his creditors, constituted an employment of the writs for an object inconsistent with their nature, and were such a perversion of them from their legitimate purpose as rendered them fraudulent and void as against other creditors.
It is true the Appellate Court found, ás a matter of fact, that the senior executions were not taken out or used by the plaintiffs therein, or by the sheriff, for the purpose of hindering, delaying or defrauding any of the creditors of the execution debtor, and that the postponements of the sale were reasonable and proper, under the circumstances, and did not, in fact, in any manner injure or tend to injure, dela3r, defraud or hinder the plaintiffs in the junior execution, or any other creditor of the execution debtor, in the collection of their demands against him. If the present case is one in which the Appellate Court was required by the statute to find the facts and recite the same in its final judgment, it must, of course, be conceded that this finding is conclusive that in the several postponements of the sale there was no fraud in fact,—that is to say, there was no actual intention on the part of the plaintiffs in the senior executions, or of the sheriff, to hinder, delay or defraud other creditors,— and that the postponements of the sale did not, in fact, have that effect. But it is clear that the finding of the Appellate Court upon the question whether the use made of the executions was fraudulent can be given no effect beyond this. Whether there was fraud in law,—that is to say, whether fraud resulted, as a legal consequence or conclusion, from the postponements of the sale, made in the manner and for the purposes above stated,—is a legal question, in respect to which the findings of the Appellate Court can have no binding effect in this court.
Does the law, then, from the facts as found, imply such fraud as must be held to be sufficient to postpone the senior executions to the lien of the junior creditors? The general doctrine applicable to this subject is stated by Freeman in his treatise on Executions, as follows: “An execution and its lien may be 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. The only proper use of an execution is to enforce the collection of a debt, and to enforce it with a considerable degree of diligence. To employ it for other objects is inconsistent with its nature, and such a perversion from its legitimate purposes as brings upon it the penalty prescribed by the statute of Elizabeth. The plaintiff in execution may desire to allow the defendant time in which to make payment, and yet may wish to save himself from all hazard arising from his delay to enforce collection of his judgment. He is likely, therefore, to take out execution with a view of binding defendant’s property, but with no intent to make any immediate levy or sale,—in other words, he seeks to convert an execution into a mere mortgage. This the law will not tolerate.” (1 Freeman on Executions, sec. 206.) And again : “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 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. He can not avoid this result by showing that his intentions were meritorious, or that he knew of no other creditors.. Whenever, by the plaintiff’s orders, or by agreement between him and the defendant, the execution of the writ is suspended, by directions not to levy, or, after levy, by directions not to sell, whether such directions are permanent in their nature or designed to operate only until further orders are given, then, according to the decided preponderance of the authorities, the lien is also suspended, and the execution becomes dormant.” Ibid.
In Gilmore v. Davis, 84 Ill. 487, this court stated the rule as follows: “We believe the doctrine to be, as the object of an execution is to obtain satisfaction of the judgment on which it issues, on its delivery to the proper officer it gives to the creditor a priority, because the law imposes the duty upon the officer to execute it without delay. Any act of the creditor, therefore, diverting the execution from this purpose, renders it inoperative against other creditors, and clothes them with priority.” In that case an execution was placed in the hands of the officer with instructions not to levy until further orders, and it was held to be subordinate to another execution afterwards issued to the officer with instructions to proceed at once. In Ross v. Weber, 26 Ill. 221, a judgment. creditor entered into an agreement with his debtor to stay his execution, and it was held that the execution thereby became dormant, and that the creditor lost the lien acquired by bis levy.
But an execution does not become dormant or fraudulent by the mere indulgence or negligence of the sheriff. “The concurrence of the plaintiff is necessary to produce that result, and if the delay in proceeding under an execution arises from the orders of the party by whom it has been issued, or from collusion with him, such delay will render the execution fraudulent and void as against all other creditors of the defendant.” Murfree on Sheriffs, sec. 536. See, also, Eberle v. Mayer, 1 Rawle, 366; Commonwealth v. Stremback, 3 id. 341; Hickman v. Caldwell, 4 id. 376; Kellogg v. Griffin, 17 Johns. 274; Berry v. Smith, 3 Wash. C. C. 60; Korem v. Roemhold, 6 Ill. App. 275; Baldwin v. Freydendall, 10 id. 106.
The application of these rules to the present case must result, we think, in the conclusion that, at the time the junior execution was placed in the hands of the sheriff, the senior executions were dormant, so as to give priority to the junior writ. The postponements of the sale from time to time do not seem to have been made by the sheriff for want of bidders, nor in the exercise by him of the discretion which the law vested in him in matters of that character, but they were all made as the result of the interference by the creditors in the due execution of their writs, and at their express request, and for objects inconsistent with the nature and purposes of the writs. On that subject, as we have already seen, the Appellate Court found the fact to be, that all these postponements of the sale were made by the sheriff at the request of the plaintiffs in the executions, and for the benefit of the execution debtor, and with the hope that the debtor might make some arrangement with his creditors.
That such use of the writs constituted a perversion of them from their legitimate purposes seems to us too plain to admit of serious doubt. Action under them was postponed from time to time, for the mere purpose of giving the debtor an opportunity to negotiate with his other creditors in such way as to secure from them some compromise or other advantage. This manifestly was not a purpose for which the writs could be legitimately used.
It matters not that the creditors were actuated by motives of kindness or leniency to their debtor', or that they had no actual intention to hinder or defraud other creditors, nor is it a controlling circumstance that the various postponements of the sale did not, as a matter of fact, hinder, delay or defraud other creditors. Fraud arises from such abuse of the writs as a legal conclusion,. and the consequence which the law imposes is, to give to a junior execution coming into the hands of the sheriff during the pendency of such postponements, a preference over the writs used for such fraudulent purpose.
The senior creditors having thus lost their priority, the sheriff, in distributing the proceeds of the sale of the goods, should have satisfied the junior execution first, and sufficient money having been realized to more than satisfy that execution, his return that he could find no property of the execution debtor with which to satisfy it was a false return, which entitled the plaintiffs therein to recover from him the amount of their judgment and costs.
We are of the opinion, therefore, that the judgment of the Superior Court was justified by the facts, and the judgment of the Appellate Court will accordingly be reversed and the judgment of the Superior Court will be affirmed. .
Judgment reversed.