Springer's Adm'x. v. Johnson — 3 Del. 515

Majority

p. 515

J. SPRINGER’S Adm’x. vs. S. P. JOHNSON et al.

Headnote

By agreement between debtor and execution creditor, the defendant’s land was sold without first selling his goods; and the sale was confirmed; though objected to by a junior judgment creditor who had not power to issue an execution.

A writ of fieri facias was issued in this case against the defendant, Johnson, on a judgment recovered against him, and was returned “nulla bona by agreement of parties, levied on land, inquiry held and not sufficient.” Venditioni exponas and sale of the land of the defendant, Johnson.

George Houston, another judgment creditor of Samuel P. Johnson, now filed an affidavit that the land was sold without first selling the personal property of the defendant, the return of nulla bona being by agreement between the parties; which he alledged operated injuriously to his interest; and he moved to set aside the sale on this .ground.

Gi/pin and Rodney, for other creditors, and Whiteley, for the purchaser,

opposed the application, and contended that the omission to

levy on and sell the personal property, was a matter of personal privilege to the defendant, which he might waive; and, if the plaintiff in thal execution consent, no other could complain. That Mr. Houston or any other creditor could not be prevented by such agreement from levying and selling, if his judgment was in a condition to levy; and, if it was not, he had no right to be aided by the process of this party, who waived his lien on the goods.

Wm. H. Rogers, contra,

contended that there was no authority to sell the land until after a sale of the goods; and that the defendant could no more waive the sale of his goods than he could waive the pre-requisite of an inquisition on, and condemnation of, the lands. ( 1 Harr. Rep. 347 , Wilson’s adm’r. vs. Hukill; Dig. 204.)

The effect of this mode of proceeding has been in fraud of George ■Houston, whose judgment was not in a condition to execute. The Bplaintiff in this case by issuing execution, obtained a lien on the de-Hfendant’s goods, which ought to have gone to satisfy his judgment, Rind then the plaintiff’s judgment (which was a prior one,) would have Hbeen satisfied out of the land.

Per Curiam:

The right to have his land protected from Bsale while he has personal property, is a protection and privilege tó

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the defendant which he may waive, if he does not by such waiver' affect the legal rights of any other. ( 4 Yeates’ Rep. 21 .) It may often be greatly to the benefit of a defendant to sell his land before his personal chattels, which may be more .necessary for the comfort and support of himself and family than the land; and if he and the execution creditors agree to this, we do not see how the legal rights of any other persons can be effected.

The plaintiff and defendant in this execution and also the purchaser of the land, wish the sale confirmed; but objection is made by George Houston, who by affidavit shows himself to be a younger judgment creditor, but without execution; his judgment not being yet due. He objects that the sale of the defendant’s land under Mrs. Springer’s judgment and execution, before selling the defendant’s goods, is an injury to him; because, if the goods, upon which he has no lien, were first sold on Mrs. Springer’s execution, the amount of sales would go to satisfy her judgment, and leave the land, upon which his judgment is a lien, to satisfy his debt.

This is an advantage that Mr. Houston might acquire if Mrs. S. chose to sell the goods under her execution; but it is one which he cannot compel. He has no control over her execution. She does him no more wrong by omitting to levy on the defendant’s goods, for the purpose of sale than she would by omitting to issue the execution, and the agreement between her and the defendant to pass over his personal property and sell the land, is not any use of her execution process of which Mr. Houston has the right to complain.

Neither does the sale of the land without the goods, deprive Mr Houston of any lien or other right, or even place him in any worse condition. He has no lien on the personal estate, nor any right to contro it. His security for his debt is a judgment lien on the land, withou the power of executing the goods, and which leaves the goods in defendant’s hands, subject to all the risks arising from his possession o: and power over them. The agreement between Mrs. Springer ancl the defendant still to leave them in bis hands does not increase thiJ risk or take away from Mr. Houston any rights in relation to theml When his judgment falls due he can take them in execution, if thejl are still to be found; if not, it is one of the risks against which hcl has not provided in taking a security upon the- land alone. I

The case of Wilson’s adm’r. vs. Hukill, 1 Harr. Rep. 347 , does nol conflict with this view. It was there decided that an inquisitioil could not be held upon defendant’s lands without selling his good!

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(he objecting,) because the proceeds of the sale of his goods "might save his land from condemnation and sale. This is his privilege; given to him by the act of assembly. But if he waive his privilege and consent to the inquisition and sale, third persons whose rights are not effected by it cannot complain.

Wm. H. Rogers, for the rule.

Gilpin, Rodney and Whitely, contra.

Rule set aside and sale confirmed.