Anthracite Mining Co., 318 Pa. 481, 178 A. 833 (1935). But Joscar Company has no such contractual remedy in this case, and, of course, it has no secured claim which would force the court to grant any "equitable levy." Cf. Atlantic Trust Co. v. Dana, 128 F. 209 (9th Cir. 1903).
Joscar's petition accordingly cannot be granted because their judgment does not constitute a valid lien and because it would defeat the purposes of this equity receivership to allow them to levy execution against the Conservator now, or at any future time.
The judgment in the United States District Court in New York constituted a lien on real estate there according to the judgment lien law of New York, N.Y. Lien Law, McKinney's Consol.Laws, c. 33, §§ 40-64; N.Y.C.P.L.R. § 5018; 28 U.S.C. § 1962. No judgment was docketed in Pennslvania until several months after the appointment of the Conservator. Thus Joscar Company acquired no lien on real estate in Philadelphia County, 28 U.S.C. § 1962, 12 P.S. §§ 877 et seq., 921 et seq., nor in any other county. A fortiori, no judgment lien existed or exists on personalty of defendant-debtors; no execution has yet been levied, nor could it be.
Since Joscar Company has no lien nor any "vested right," 20 Pa.L. Encyc., "Judgments," § 361 (p. 498); Quinn v. Bancroft-Jones Corporation, 12 F.2d 958 (W.D.N.Y. 1926); Davis v. Seneca Falls Mfg. Co., 8 F.2d 546, 550 (W.D.N.Y.1925), whether it should be allowed to levy execution permissively rests in the court's customary equity discretion.
The purpose of appointing a Conservator in this case, as with the appointment of any receiver, was to "preserve and conserve or realize the property or [funds]" that belonged or might belong to the defendant-debtors. 1 Clark on Receivers § 648 (p. 913). No "vested rights" accrue to any unsecured claimants by the appointment. 1 Clark on Receivers § 649 (p. 915). The conservatorship put all creditors to an election to proceed against the debtors in a separate action or to file their claims or intervene in the "receivership" action and take their share of the debtors' property upon distribution by the receiver. Any judgment on a claim outside the receivership is only a decree that the defendant-debtor pay the plaintiff; if the judgment creditor wants to share, he must prove his claim to the appointing court and get an order to the effect that the judgment establishes his right to share -- share with other creditors. 1 Clark on Receivers § 610 (p. 834), § 622 (p. 849), § 649(a) (p. 915). The Supreme Court has suggested that a court, in allowing permissive suits against the receiver, act according to what "in its judgment may be most beneficial to those interested in the estate." Porter v. Sabin, 149 U.S. 473, 13 S. Ct. 1008, 37 L. Ed. 815 (1893). If, even when a creditor has a pre-existing lien, the lien is not entitled to be paid (in its proper order) until the final receivership distribution, 1 Clark on Receivers § 612 (pp. 838-9), it seems difficult to see how Joscar Company can obtain early execution and payment and without harm to all other creditors interested in the estate.
The agreement between the Conservator and the defendants attempts to secure a maximum of money for the several creditors in exchange for the complete settlement of their claims. Joscar Company, in seeking permissive execution, in effect wants its share of that maximum (some of which came from parties other than the defendants) without offering the quid pro quo of final settlement of its claim. Allowing Joscar Company's petition would, accordingly, defeat the very ends for which this receivership or conservatorship was established. See, e.g., High, Receivers, § 151 (p. 180); Kiwala v. Witkowski, 6 Pa.Dist. & Co.2d 189 (1955). As the Supreme Court emphasized in Wiswall v. Sampson, 55 U.S. 52, 14 How. 52, 67, 14 L. Ed. 322 (1852): "Unless the court be permitted to retain the possession of the fund, thus to administer it, how can it ascertain the interest in the same to which the * * * creditor is entitled * * *?" Wiswall v. Sampson held illegal and void a sale under a judgment where the judgment and the execution were both before the receiver was appointed but the sale was afterward. See, also, Hitz v. Jenks, 185 U.S. 155, 22 S. Ct. 598, 46 L. Ed. 851 (1902).
The agreement between the Conservator and the defendants allows for instalment payments only to consenting creditors. The presence of additional funds in the hands of the receiver to pay contested claims in no way gives Joscar Company any "vested rights" to either the "extra" fund or to the instalment payments. See, e.g., 1 Clark on Receivers § 652 (p. 918).
For the foregoing reasons, the prayer of the petition (Document 77) that "the court enter an order on the Conservator and the defendants to show cause why the petitioner should not be authorized to either issue execution process to attach the unappropriated funds of the debtor in the hands of the Conservator or, in the alternative, that the Conservator be ordered and directed to pay over to the petitioner so much of the fund in its hands to satisfy the petitioner's judgment, with interest and costs" will be denied. In the attached brief, petitioner's counsel states its claim in a more limited way, as follows:
"* * * this application for leave either to issue an attachment against the Conservator to enforce its judgment to the extent of the fund in his hands earmarked for the petitioner or, as an alternative, for an order directing the Conservator to turn over the earmarked money to it."