Elliott v. Warfield

McFARLAND, J. Appeal upon the judgment-roll by defendant from the judgment against him as sheriff, and in favor of plaintiff as assignee of C. W. A gee, an insolvent debtor, for five hundred and fifteen dollars and costs. The only question on the . appeal is whether or not a certain adjudication of insolvency dissolved or affected the lien of an execution levy which had been made by appellant before, but within one month of, the commencement of the proceedings in insolvency, and the question arises under the insolvent act of 1880.

On the 18th of March, 1895, in a suit commenced ini [633]the superior court of San Francisco by John Featherston, plaintiff, against the insolvent, C. W. Agee, defendant, to recover three hundred and eighty dollars and eighty-four cents, an attachment issued and was levied by appellant, as sheriff, upon a certain stock of goods belonging to said Agee. On the 20th of March, 1895, another writ of attachment was issued out of the justices’ court of San Francisco in the case of Freestone Distillery Company, plaintiff, against said Agee, for one hundred and forty-nine dollars and sixty-two cents, and was levied by the appellant upon the same property. On the 22d of March, 1895, Mary Minor commenced- a suit against Agee in the superior court of Merced county, where he resided, for something over two thousand dollars, and in said action a writ -of attachment was also issued and levied upon said property. Such proceedings were had that on April 2, 1895, Minor obtained judgment against Agee in said action for two thousand three hundred and sixty dollars-; and on the same day an execution was issued upon the judgment and levied upon the said property, and on April 10, 1895, the appellant, as sheriff, under and by virtue of said writ of execution, sold at public auction all the said property to said Mary Minor for the sum of five hundred and fifteen dollars, which sum was 'the value of the property thus sold. The appellant paid the five hundred and fifteen dollars- realized on the sale to Mary Minor. On April 4, 1895, two days after the levy of said execution, Agee filed his petition in insolvency in the superior court of Merced county, and on said day was adjudged an insolvent by said court. The respondent was afterward appointed assignee in the insolvency proceeding, and after having demanded of the appellant that he pay to him, as assignee, the said five hundred and fifteen dollars, and, the appellant having refused to do so, he commenced this suit.

There is no doubt of the general rule that an adjudication in insolvency does not dissolve or affect the lien upon final process of the levy of an execution made prior to, and existing at the time of, the commencement of the insolvency proceeding. Section 17 of the Insolvent Act of 1880 provides that the assignment by the clerk to the assignee shall vest title to the property of the insolvent in the assignee, “although the same is then at