CASES IN THE DISTRICT COURT FOR THE CITY AND COUNTY OF PHILADELPHIA. MITCHEL against Evans. The court under the act chanic and EVANS purchased of Mitchel a lot, and gave him a mort- would not give gage for the purchase money, dated the 13th of September, a preference 1810, on the 19th of June, 1811, the mortgage was assigned over a clim to Mary Bell, and was recorded on the 28th of January, 1811. to secure me In the month of February, 1811, Richardson, a house-car- others concern. penter, was employed by Evans to erect a frame building for ed in the erec a theatre on the lot, and at different times during that month to a mortgage and the beginning of March, he superintended the purchase of given materials, and on the 11th of March, 1811, actually began the m nt of the building. tion of bouses, fore the commence. building, but not recorded On the 19th of August, 1811, he filed a claim agreeably to within six the act of the 17th of March, 1806. On the 1st of May, 1812, a scire facias issued on the mortgage, and judgment was taken by default on the 8th of June, 1812, and a Levari facias issued to September, 1812, on which the lot and building were sold. PER CURIAM. HEMPHILL, President. From the statement of this case it appears that when Richardson was first employed, and when he actually commenced the building, six months had not expired from the date of the mortgage, and that the mortgage was recorded before the claim was filed; but all the dates mentioned includ months; 1811. MITCHEL against EVANS. ing the time of sale were within two years from the commencement of the building, during which time a lien continues without any claim being filed. The words of the act are," That all and every dwelling "house or other building hereafter constructed and erected "within the city and county of Philadelphia, shall be subject "to the payment of the debts contracted for or by reason of "any work done or materials found in the erecting and con"structing such house or other building before any other lien "which originated subsequent to the commencement of the "said house or other building." Now it is clear in this case, that the lien created by the mortgage did not originate subsequent to the commencement of the building, it was an existing lien at that time. This case therefore is not embraced within the general words of the act; but as only two days of the six months remained unexpired at the commencement of the building, nearly, if not the whole of the carpenter's claim must have originated after the expiration of the six months. A lien creditor ought to be favoured, because it is the object of the lien laws, to give him a security upon the specific thing. In this case as the mortgagee did not record his mortgage, whereby the carpenter might have been made acquainted with his situation, he was guilty at least of negligence, and we think that upon a fair and equitable construction of the two acts, the mortgage ought not to be permitted to take the value of the building, which was not contemplated as a part of his security when he took the mortgage, but that the earpenter ought to have the advantage of his lien on the fund which was created by his labour and materials, he having had no notice of the mortgage. In equity a mortgagee who has been careless is not favoured when his request stands in opposition to an innocent person, who may be considered in some measure as having been drawn into his situation by the inattention of the mortgagee. As if the first mortgagee permits the mortgagor to keep the title deeds, and the mortgagor shewing a fair title, mortgages the premises to a second mortgagee to whom he delivers the deeds, the second mortgagee will not be compelled to deliver up the title deeds unless his mortgage is paid off. (a) In this case we do not meddle with the general question as to the liability of the lot. The mortgage being a lien that did not originate subsequent to the commencement of the building. Our decision is founded upon the peculiar circumstances of the case, and particularly on account of the mortgage not being recorded. It is considered as a new case, and that the mortgage ceased being a lien after the six months, at least so far as respected the building, as to which the carpenter is considered as quasi mortgagee, without notice with a lien for two years. The court direct the value of the building to be paid to the lien creditors. 1811. MITCHELL against EVANS, PARKER against FARR. A debt was attached by virtue of a foreign attach ment, and the ing intestate, A FOREIGN attachment was issued to September Term 1804, by Achilles Parker against William Williams and F. Baynold, in which William Farr was made the garnishee. Judgment was entered at the third term, and a scire facias was garnishee dyissued against Farr, but he died intestate, before trial or judg- and his estate ment. The administrators, Elizabeth Farr and Noah Simmons, being insuffi cient to satisfy were substituted as defendants; but a non suit was afterwards all his credisuffered. The present scire facias against the administrators was afterwards brought The administrators pleaded that there were no goods in the hands of the garnishee at the time the attachment was served or afterwards; and on the trial the jury found for the plaintiff as follows: "One hundred and seventy seven dollars damages being the amount of the debt due from William Farr at the time of his death". The defendants had also pleaded a want of assets; but, on the trial, the question of assets was left open, by consent of the parties. No bail was demanded of the garnishee, nor were any interrogatories filed, for him to answer, as allowed by the act of (a) 3 P Wms, 279 N tors, it was plaintiff had no preference over bel, that the the other creditors: 1811. PARKER against FARR. Assembly of the 28th of September, 1789. It was admitted that there were assets sufficient to discharge the damages found by the jury; but there were not enough to satisfy all the debts of the garnishee. The question submitted for the decision of the court was, whether the foreign attachment creditor had a preference over the other creditors of William Farr, or was to be paid out of the assets according to the directions of the act of the 19th of April, 1794, which points out the order for paying the debts of an intestate? It was argued by Shoemaker for the plaintiff, and Todd for the defendant. PER CURIAM, HEMPHILL, President. The court give no opinion on the case where the jury find specific articles to have been in the hands of the garnishee; there may be a distinction between such a case and the present, where the jury have found that a debt was due from the garnishee to the defendant in the attachment. In the case of specific articles being attached they could not be said to belong to the garnishee, and it would therefore be unreasonable that they should be appropriated towards the payment of his debts. Difficulties may occur on this head where no security has been demanded of the garnishee, and the sheriff has not taken the articles into his custody, to abide the judgment of the court. But from the nature of the thing a debt cannot be taken into custody by the sheriff. The attaching creditor has a lien on the debt, so far as to restrain the garnishee from paying it over to the original creditor, but no further. A foreign attachment creates no lien on the real or personal estate of the garnishee. He is at liberty to dispose of either, clear of any incumbrance on that account. If the defendant in the foreign attachment enters special bail, and dissolves the attachment, then the garnishee may pay him; but if special bail is not entered, the garnishee is obliged to pay the person to whom the law, by its process, transfers the debt. But in case of the intestacy of the garnishee, why should this particular debt be exempted from the operation of the act of the 19th of April, 1794? How does the attachment creditor acquire a greater interest, in this respect, over this debt, than the defendant in the attachment would have had if no attachment had been issued, or, if an attachment having been issued, had been dissolved by the entry of special bail. It appears to the court that satisfactory answers cannot be given to these questions. The instant a garnishee dies intestate, the rights of all his creditors intervene, and their rights are protected by the positive language of the act of assembly. The general creditors have no fund to look to but the estate of the intestate; whereas the attaching creditor may perhaps get the remainder of his debt from the defendant in the at tachment. The construction the court have put upon the acts of assembly relating to the subject, is most consonant to reason and equity, and they have not been able to discover any decision to the contrary, or any principle of the foreign attachment Jaws that mitigates against their opinion. 1811. PARKER against FARR. Religious Society of Roman Catholics against HITCHCOCK. a ON the 28th of May, 1813, the sheriff, by virtue of fieri facias, for costs, at the suit of the Religious Society Roman Catholics, levied on personal property of the defend of The Sheriff having made a levy by virtue of a fi fa for costs, delayed further proceedings thercon until after the when another ants. No further proceedings took place under that execu- return day, tion until the 24th of August in the same year, when the pro- fi fa against the perty was sold, but did not produce sufficient to pay the rent same person, and the amount of this execution. being placed in his hands, be same property, The second fieri facias, at the suit of Graver and Eager, levied on the was placed in the sheriff's hands on the 26th of July, 1813. subject to the On the 13th the sheriff made a levy on the same property, first execution subject to the prior levy. The question submitted to the court was, to which of the executions the proceeds of the sale should be applied. prior Levy. The was preferred. |