H. Baars, Appellant, vs. W. F. & J. E. Creary, Appellees, 23 Fla. 311

Mr. Justice Raney delivered the opinion of the court: The appellees performed labor and furnished materials for the repair of the steam tug boat Jumbo, and filed, within the time prescribed by the statutes, in the office of the Clerk of the Circuit Court of Escambia county, notice of their intention to hold a lien on the steamboat for the amount of their claim. Pensacola, in said county, was, and so far as we are informed continued to be, the vessel’s home port. Appellees brought suit under the statute against D. & R.

Piaggio to enforce their claim and lien, and judgment was rendered on December 19th, 1884, that appellees have and recover of said D. & R. Piaggio, late co-partners, $266.70 and costs, and that the said “ steam tug boat Jumbo be sold for the satisfaction of the lien of W. E. & J. E. Creary to satisfy the said ” amount and costs. The appellant purchased the tug boat of the Messrs. Piaggio after the institution of the said suit by appellees, and was in possession of her at the time the execution was levied upon her.

This execution, issued April 29,1885, is addressed to all and singular the Sheriffs of the State, and commands “ that of the goods and chattels, lands, and tenements of D. and R. Piaggio, late co-partners, to be made out of the sale of the steam, tug Jumbo’’ they cause to be made the said sum “ which ~W. F. & J. E. Oreary lately, on December 19th, 1884, recovered ” in said Escambia Circuit Court, and is otherwise like our ordinary fi.fa.

This writ was levied by the Sheriff upon the tug boat on the 15th of May, 1885, and appellant interposed a “ claim ” under our practice, and the Sheriff delivered the property to him and returned the writ and claim proceedings to the Circuit Court as is required in such cases, and a jury having been waived the cause was tried before the judge, and judgment rendered at the Spring Term, 1886. This judgment finds that the claimants’ purchase and possession of said steam tug Jumbo was had from defendants, “ the Messrs.

Piaggio,” after lien had attached to or existed against it in favor of the plaintiffs in execution, with notice of lien, and that said steam tug is not the property of the claimant, but subject.and liable to this execution, and is the property of said defendant in execution for the satisfaction of said lien, subject to and liable to said execution, and therefore it is considered by the court that the plaintiffs in execution may proceed to execute the levy made as aforesaid on the property as aforesaid ascertained to be subject and liable to this execution,” and for costs.

It is contended for appellant that the execution is nothing but an ordinary writ of execution in a .common law case under our practice, having nothing in it suggesting the enforcement of a judgment declaring a lien; that with such an execution the plaintiffs therein have only the rights incidental to an ordinary execution, and consequently the appellant had.a right to the trial of property without reference to a lien.

It may be regarded as settled that one who interposes a “ claim ” to property levied on under an execution to which he is a stranger cannot question the regularity of the execution or of the judgment upon which it is based. This is a question for the defendant in execution to raise, if he desires, by a direct proceeding. Price & Wife vs. Sanchez, 8 Fla., 136 ; Moseley vs. Edward, 2 Fla., 429; Fryer vs. Dennis, 2 Ala., 144; Perkins & Elliott vs. Mayfield, 5 Porter, 182; Dexter vs. Parkens, 22 Ill., 143. The purpose of the claim statute is to provide a

summary remedy for a stranger to an execution, who claims title to the property levied on, to have the question of the superiority of his alleged title over the right of the plaintiff in execution to subject it to the satisfaction of his execution and judgment settled, and it was never intended as a remedy against illegal or irregular executions; We may, however, say that though the language in the execution before us, as to the steam tug «Tumba, is inartificial, it is both suggestive of a special purpose to effect her sale and is an ear mark, which, with the aid of others, clearly connects the writ with the judgment which adjudges the lien upon the boat.

This judgment is one at law, as are the action in which it is rendered and the lien it enforces. The statute authorizes the rendition of a general judgment against the original debtor as well asoné declaring and enforcing the lien, as was done here ; and we do not see why our ordinary common law execution is not a proper writ for enforcing it as well against the property covered by the specific lien, without waiving such lien, as against the general property of the judgment debtor. Phillips on Mechanics’ Liens, §458. No form of execution has been specially prescribed for this case.

It is practicable to use the one in question, and in the absence of any legislation on the subject it is reasonable to assume that it was deemed sufficient.

The counsel for appellant also argues that the only question to be tried in a proceeding under our claim statute is whether property levied on “belonged at the time of the levy to the defendant in execution,” that “ the lien cannot change the property and make it another’s.” If this, as we understand the meaning of counsel, were so, then any bona fide purchase, for a valuable consideration, of personal property from a defendant in execution between the delivery of the writ into the hands of the Sheriff and the levy thereof, will on being proved support the “ claim,” and defeat the lien of the fieri facias.

Marshall vs. Cunningham, 13 Ill., 20. The “ right of property ” which the j ury is sworm to “ try ” is an issue of superiority as between the right of the plaintiff in execution to subject the chattel to the satisfaction of his writ, and the claimant’s title on the other hand, as against such right; an isssue of the liability of the property to the plaintiff’s execution as against the claimant’s title. This is the view of this court in Moody vs. Hoe, &c., 22 Fla., 309, and our investigations in the case now before us have confirmed its correctness.

It is also contended that the judgment does not ascertain or declare a. lien. The “ facts in evidence” agreed upon by the attorneys and appearing in the bill of exceptions show the lien of the Messrs. Creary as it is stated in the outset Of this opinion, and it cannot be doubted either what the nature of this lien was, or that it antedated the purchase by the appellant. This agreed statement was made for the purpose doubtless of avoiding the introduction of the pleadings and proceedings upon which the judgment was rendered.

The judgment directs a sale of the property for the satisfaction of the lien as provided by the statute. Secs. 6' and 7, pp. 722 and 723, Mc.C’s Dig. It determines judicially the validity and amount of the lien, enforcing it as valid from its legal origin. The claimant has not shown a title superior to the right oí the execution plaintiffs, and consequently the judgment must be affirmed. It is so ordered.