Wootten v. Harris

5 Del. 254

• Court: Superior Court of Delaware
• Decided: July 5, 1850
• Status: Published

Opinion

Nathaniel P. Harris obtained a judgment against David B.. Smith, and issued execution on the 26th of October, 1849. This judgment was assigned to Minos T. Conoway, on the 3d of April, 1850.

The plaintiff, Edward Wootten, now elected to take the answer of Smith’s executor, and had a rule to show cause why he should not be compelled to answer.

Conoway, as assignee of Harris, moved to discharge the executor of Smith from the attachment, swearing that the assignment was made to him on a consideration, without fraud, as he believed.

The question is, whether the attachment lien on the fund in the hands of Smith, or of his executor, has a preference to the claim of Conoway. This does not depend on the validity of the assignment to Conoway, though that would, on such an affidavit as this, be regarded as fraudulent. I agree that no proceeding can be taken against an administrator, to make a specific lien on goods in his hands, so as to disturb the administration; but where a lien has been established in the life time of the testator, the goods go in the executor’s hands, subject to such lien; a lien on the goods by attachment cannot be different from a lien upon goods by execution. If an execution had been issued and levied against Mr. Smith, in his life time, its lien would have continued upon the goods in the hands of his executor: why then should not the attachment lien continue in the hands of the executor ?

This debt of Conoway is now a judgment and execution against Smith’s executor, levied on Smith’s goods; yet the object is to make this attachment, not yet having gone to judgment, have precedence to this execution. If the executor, by leave of the court, comes in and answers to this attachment, how will the judgment on that answer protect the estate against the judgment of Conoway ? And how is the sheriff, who has this execution in hand, to be relieved from collecting the money on the execution ? It would be the same thing on a plea of nulla bona, and trial. Conoway could not be heard, and could not be bound by such trial. The executor ought not then to be permitted to answer.

No answer has been given to the main point. What removes the lien which had accrued before Mr. Smith’s death ? By the garnishment a legal lien was obtained on this debt, in the hands of the testator. .How is this'discharged by his death ? It is a lien on the credits; just as an execution levied is a lien on the goods. The death will not in either case remove the lien. The principle of not allowing a disturbance of the order of administration, is for the protection of the estate ; it is not for the benefit of the creditors. Why should the death remove the lien ? The attachment is not suspended nor the lien waived, because the answer is not made. The party may be attached after many terms; if there be continuatory process. A.lien by levy on execution is not removed by death of the defendant, nor by the lapse of several terms. Giving validity to the attachment will not in any respect disturb the administration of his estate; though it will stay the execution of Harris’ judgment. And in regard to a preference over other creditors of Smith, it is only the preference which the lien gives ; the judgment would be of assets. Rule discharged.