Full opinion text
ANDREW M. J. COCHRAN, District Judge. This suit is before me on the petition of L. D. Crawford, Austin Fields, Martha Grigsby, and Louie Couch for an order directing the receiver herein to turn over or to pay, as hereinafter more fully set forth. The facts upon which this petition is based are these: April 29,1913, the petitioner L. D. Crawford and wife, and the petitioner Austin Fields and wife, Joseph Fields and wife, Callie Fields, the petitioner Martha Grigsby and husband, and the petitioner Louie Couch executed to the North Fork Coal Company a coal mining lease for the term of 25 years on a tract of 150 acres of land in Perry county in this district. It is likely that the land was jointly owned by the lessors, one-half by the petitioner Crawford, and the other half by the other lessors, but it is possible that separate portion or portions thereof were owned by the lessors respectively. However this may be, the lease was a joint lease of this one body of land for coal mining purposes. By it the lessee covenanted and agreed to pay to the lessors a rent or royalty of ten cents per ton, and to mine and remove from the premises beginning May 1, 1914, sufficient tonnage of coal to amount to a minimum rent or royalty of $208.33, and $2,500 per year to be paid to the lessors from month to month whether the lessee removed enough coal to pay or amount to the minimal rental or not. A lien was retained to secure payment thereof on all mining machinery and mining property of the lessee placed on the leased premises, including mines, roads, tramways, railroad tracks, which should attach to all property placed on the leased premises. It was further agreed therein that one-half of the minimum rent and one-half of all the royalties should be payable monthly to the lessor Crawford, and one-half to the other lessors, or as they might direct. The right to this lease passed by assignment to the Daniel Boone Coal Company, whose name was subsequently changed to Boone Mining Company. This happened pri- or to May 1, 1924, and prior to that date the defendant Daniel Boone Coal Corporation took possession and operated the leasehold under some arrangement with that company which continued until after May 1,1928. The lessors claimed that, by reason thereof, defendant had become liable to them for the minimum rent or royalty which was denied by it. On September 4, 1925, the lessors, except Callie Fields, who likely had died and whose interest likely had passed to others of that group, brought suit in equity in the. circuit court of Perry, county against the Daniel Boone Coal Corporation to recover $2,500, the minimum royalty for the year ending May 1, 1925, which was unpaid, and interest thereon from that date, and for the enforcement of the lien to secure same. In August, 1926, an amended petition was filed setting up the maturity of the minimum rent due May 1, 1926, and its nonpayment, and seeking judgment for it as well as that due May 1, 1925. A second amended petition was thereafter filed setting up the provision of the lease that one-half of the minimum royalty was payable to lessor Crawford and the other half to the other lessors. A third amended petition was filed after May 1,1928, setting up the maturity and nonpayment of the installments of rent due May 1,1927, and May 1, 1928, and sought judgment for them and interest from date of maturity as well as the other two installments. The prayer of this pleading was for judgment against the two defendants, Daniel Boone Mining Corporation and Boone Mining Company, for the sum of $2,500, subject to a credit of $71.-80, with interest on same from May 5, 1925, and the further sum of $2,500, with interest thereon from May 1, 1926, and the further sum of $2,500, with interest thereon from May 1, 1927, and the further sum of $2,500 with interest thereon from May 1, 1928; and in their petition prayed “for all proper and equitable relief to which they may be entitled.” The question as to the defendant Daniel Boone Coal Corporation’s liability for these four installments of minimum rent was litigated in that suit and decided adversely to it. On March 13,1929, the circuit court of Perry county rendered a judgment therein against the two defendants in favor of the petitioners herein. One of the plaintiffs therein, Joseph Fields, had died, and the suit had not been revived in time as to his interest. By that judgment the suit as to his interest, which was one-fourth of one-half, was dismissed without prejudice. It was adjudged therein that the plaintiffs named in the caption, i. e., all the plaintiffs including Joseph Fields, recovered of both' defendants “the minimum royalty actually shown-by the evidence to be due to the plaintiffs by reason of the said lease contract from May 1, 1924 to May 1, 1928, inclusive, to be divided among the plaintiffs as their interest in and as set forth hereinafter.” It was further provided that the plaintiff Crawford so recover “the sum of $1250 with interest thereon from the first day of May 1925, subject to a credit of $112.-25, one half of the amount of the coal actually mined and paid for as claimed by the defendants, to be credited ¿s of the first day of May 1925 and * * * the sum of $1250 with interest thereon from May 1, 1926 and the further sum of $1250 with interest thereon from May 1, 1927, and the further sum of $1250 with interest thereon from May 1, 1928 and his costs herein expended,” and that the plaintiffs Austin Fields, Louie Couch and Martha Grigsby so recover “the sum of $937.-50 with interest thereon from May 1, 1925 subject to a credit of $84.26 representing their three fourths of the money actually paid to them as contended by the defendants for coal actually- mined from the leased premises to be credited as of May 1,1925 and * * * the further sum of $937.50 with interest thereon from May 1, 1926, and the further sum of $937.50 and interest thereon from May 1,1927, and the further sum of $937.50 with interest thereon from May 1, 1928 and their costs herein expended, this not representing any part of the royalties which are provided in the lease to be paid to Joseph Fields, but represents three fourths of the minimum royalty, for which each and all of the plaintiffs may have execution against both the defendants * * * without prejudice to their lien hereinafter adjudged.” Concerning the lien, it was adjudged therein that plaintiffs had a lien “upon all of the property of every kind, class and character belonging to or claimed by either of the defendants * " * consisting of houses, steel mine cars, ties, mining equipment, motors, copper wire and every other class or kind of property on or used on or in connection with the mining of the coal upon the hereinafter described tract of land, whether specifically mentioned or described herein or not and * 16 * upon the said lease contract and all the rights and privileges of the defendants— to secure to them the payment of the sum herein adjudged to each of the plaintiffs.” On the 15th of June, 1929, a writ of execution issued from the office of the clerk of the circuit court of Perry county, and on the 17th of June, 1929, it was delivered to the sheriff thereof for collection. It commanded him “of the estate of the Daniel Boone Coal Corporation and the Boone Mining Company that he cause to be made the sum of $1250 with interest from May 1, 1925 subject to a credit of $112.35 as of May 1, 1925 * * * and the further sum of $1250 with interest from May 1, 1926, and the further sum of $1250 with interest from May 1,1927 and the further sum of $1250 with interest from May 1,1928, which L. D. Crawford hath recovered against them for debt in our Perry Circuit Court * * * and the further sum of $937.-50, subject to a credit of $84.25 with interest from May 1, 1925; and the further sum of $937.50 with interest from May 1, 1926, and the further sum of $937.50 with interest from May 1, 1927 and the further sum of $937.50 ■with interest from May 1,1928 which Austin Fields, Louie Couch and Martha Grigsby in our Circuit Court of Perry County hath recovered against them for debt whereof the defendants are convicted as appears to us of record and * * * have that money before the said court on the 5th day of August 1929 to render to said L. D. Crawford and Austin Fields, Louie Couch and Martha Grigsby the debt, interest and costs aforesaid, and have then and there this writ.” There was a notation on the writ that the costs amounted to $100. At the time the writ came "into the sheriff’s hands, the defendant Daniel Boone Coal Corporation owned and possessed a commissary located on property adjacent to the leased premises at Lennut in Perry county, about one mile by rail from Hazard, the county seat, and a stock of goods and merchandise therein, and also mining houses and mine equipment on the leased premises. The sheriff, on June 18, 1929, the day after the receipt of the writ, mailed written notice thereof to the defendant, and thereupon its representatives, together with its attorney in the litigation, which resulted in the judgment, appeared at the sheriff’s office and assured him that the execution would be taken care of in due time. Becoming concerned about its nonpayment, the sheriff visited Len-nut on July 2d, made a survey of the commissary and its contents. At the same time he went to the drift mouth on the leased premises and took note of the mining equipment so far as it was observable. On the same day he made this indorsement on the writ: “This execution is levied upon one stock of merchandise ware and fixtures, also all the mining machinery and equipment of the Boone Mining Company at Lennut, Ky., and the Daniel Boone Coal Corporation at Len-nut, Ky., this July 2nd, 1929. Wm. Cornett, S. P. C. by S. C. Cornett, D. S.” On the same day the sheriff mailed a written notice of the levy to the defendant, and thereupon its principal representative in this state and its attorney appeared at his office and talked about the matter. According to the testimony of the sheriff, he said this to them: “I have levied that execution today and the 5th day of August is return day and if this execution is not paid by the 5th day of this month after I shall return this execution, I shall go out and take into my custody the property that I have levied upon, but in order to afford you all the courtesy I can reasonably I am going to leave this property in your custody and I shall expect you to take care of this property and preserve it.” This is somewhat ambiguous. It related to an important phase of the case and should not have been left in that shape. I make "it out that the sheriff notified these representatives of defendant that if the execution was not paid by August 5th, the return day, he would take the property covered by the indorsement on the execution into his actual custody, and that in the meantime he would leave it in the defendant’s custody to hold for him. He was not asked as to whether defendants’ representatives agreed to this, but such may be taken to be the effect of his testimony. Nothing more transpired until the early morning of August 5,1929', the return day of the execution. At that time the bill in the first of the two suits named in the caption hereof was filed with me in my chambers at Maysville. It was filed at 9:15 a. m. Eastern standard time, which governed there, or 8:15 a. m. Central standard time, which governed in Perry county. The bill was a creditor’s bill; the plaintiff being a judgment creditor in the amount of $30,000. It sought the appointment of a receiver. The defendant filed an answer consenting thereto and praying therefor, and .thereupon the receiver was appointed. The receiver so appointed was a lady stenographer in an adjoining lawyer’s office. The appointment was a temporary one, and was made to meet the necessities of plaintiffs’ ease, which was to have a receiver appointed by this court before the sheriff could actually take custody of the property on which he claimed to have levied the execution, as he had said to defendants’ representatives, as hereinbefore recited, he would do if the execution was not paid before that day. It was alleged in the bill “that judgment was recovered by L. D. Crawford et al. on March 13, 1929' in the Circuit Court of Perry County as aforesaid in the sum of Eight Thousand Five Hundred, Fifty Three ’dollars and nine cents ($8553.09) and accrued interest and that such judgment creditors your petitioner is informed and believes threaten to levy execution therefor on the stock of merchandise and other property of the defendant'.” Receiver was appointed of all of the defendants’ property. She was given full power and authority to collect and reduce the same to possession, and directed, authorized, and empowered immediately so to do. It was provided in the order of appointment as follows, to wit: “All persons having any'property of said defendant in their possession or under their control are hereby ordered and directed to deliver same forthwith to said receiver. It is further ordered that all persons be and they are hereby enjoined from interfering with said receiver in the possession of said property and with the administration of her trusts and in the performance of her duties imposed upon her as such receiver.” She accepted, and was qualified at once, and an attorney was appointed for her. Thereupon her attorney so appointed sent this telegram to the sheriff of Perry county: '“United States District Court, Eastern District of Kentucky, has appointed Receiver of the Daniel Boone Corporation and enjoined all persons from interfering. You are warned not to levy on or molest any property of such corporation.” The sheriff received this telegram early on the morning of that day, the 5th of August, before he had done anything towards taking actual custody of the property, which he claimed to have levied upon, and after he received the telegram he did nothing to that end. On the next day, August 6th, he received from the attorney of the receiver a copy of the order of appointment. In the letter which it accompanied, the attorney said: “I wish to confirm the telegram which I sent you yesterday from Maysville, Kentucky, as follows — For your information I am sending herewith a certified copy of Judge Cochran’s order appointing a receiver for all the assets and property of the Daniel Boone Coal Corporation which order was entered and the receiver qualified at 9:15 A. M. Eastern Standard Time.” Thereupon the sheriff made this indorsement on the execution: “This execution returned. The levy endorsed hereon is stayed. The defendant Boone Mining Company and the Daniel Boone Coal Corporation in hands of receiver in the U. S. District Court of Eastern, Ky.” According to the testimony of the sheriff, who was a competent judge in such matters, the stock of goods and merchandise in the commissary at the time the execution was in his hands was worth at least $10,000. It had been inventoried on June 30, 1929, and, according to the inventory, it amounted to $12,510.32. Between July 2 and August 4, 1929, the sales out of the stock amounted to $5,786.35 and the additions thereto amounted to $5,702.33. The equipment on the leased premises was valued at $14,140. Such then are the facts on which- the petitioners base their right to the relief which they seek. That relief may be stated more specifically to be that the receiver herein, successor to the original receiver, be ordered and required to turn back to the sheriff of Perry county the goods, wares, merchandise, and fixtures in the commissary, and the equipment and houses on the leased premises at the time of the appointment of the original receiver and which he took possession of, and, if same are not now on hand, to account for their value to the extent of their judgment. The plaintiffs urge several grounds upon which they claim that the petitioners are not-entitled to the relief they seek. I will take up and dispose of each one of them. 1. The execution was void. This is so because it was a joint execution on two separate judgments. They cite, in support of this position, the following decisions, to wit: Merehie v. Gaines, 5 B. Mon. (Ky.) 126; Stuart & Palmer v. Heiskell’s Trustee, 86 Va. 191, 9 S. E. 984, 985; Cohen v. Menard, 31 Ill. App. 503; Doe v. Rue, 4 Blackf. (Ind.) 263, 29 Am. Dec. 368; Stewart v. Morrison, 81 Tex. 396,17 S. W. 15, 17, 26 Am. St. Rep. 821; Bain & Wyatt v. Chrisman, 27 Mo. 293; Bigham v. Dover, 86 Ark. 323, 110 S. W. 217. To determine whether these decisions support this position, a generalization of them is essential to ascertain just what they stand for and all they do stand for. Beyond question they do- stand for the position that a joint execution on separate judgments is void. I would, however, drop the word “joint” and put the matter thus: A single execution on separate judgments is void. Certainly it is defective. • In the ease of Dugan v. Harman, 80 Kan. 302, 102 P. 465,133 Am. St. Rep. 209, it was held by a divided eourt that such defectiveness renders the execution voidable only, not void. According to these decisions it is void. Two of them cannot be accounted for on any other ground. They are those in the cases of Merehie v. Gaines and Bigham v. Dover. In each case the question presented was whether a purchaser under such an execution acquired title to property sold under it. It was held that he did not. This could only be so on the ground that the execution was void. In the case of Merehie v. Gaines, it was said: “The sale was consequently void and the defendant obtained no title by his purchase and deed.” In the ease of Bigham v. Dover, it was said: “A joint execution upon two separate judgments is not voidable merely but void. Merehie v. Gaines, 5 B. Mon. (Ky.) 126; Doe v. Rue, 4 Blackf. (Ind.) 263, 29 Am. Dec. 368. Such an execution is defective, not in form merely, but also in substance, and is therefore not susceptible of amendment.” It further said that the execution in that case, because it was a joint one, issued upon two separate judgments, was “absolutely void,” and, further, “Appellee acquired no title by his purchase at a sale under the void execution.” It is well, in this connection, to bring out the reason put forth for this position. Why is it that such an execution is defective and by reason thereof void? In some of these, decisions it is based on the ground of variance. It so- happened in those eases that the execution recited that it was issued on a single judgment, when, as a matter of fact, it was issued on two separate judgments. In Merchie v. Gaines, it was said: “The doctrine has been long since well settled, that to sustain a sale of land under execution, there must be a valid judgment or deeree. The purchaser to make out title, must not only produce the execution, but the judgment. The execution in this case purports to have been issued upon a deeree in favor of Fowler & Winslow. No such deeree is produced, but separate and distinct decrees for the costs of each.” In Cohen v. Menard, it was said: “The execution must follow the judgment, and to include two separate and distinct claims as two several judgments in one execution as one judgment for amount of both claims renders the execution fatally defective for variance from the judgment.” In the case of Doe v. Rue, it is said: “The variance is fatal.” But the reason for this position goes deeper than this. Even if there was no variance, i. e., if the execution recited that it was issued not on a single judgment, but on two separate and distinct judgments, thus conforming to the fact, still it would be void. The true ground for the position is that there is no authority for the issuance of a single execution on two separate and distinct judgments. In the ease of Merchie v. Gaines, it was said: “The Clerk had no authority to blend or unite them, and issue a joint execution for the aggregate amount of costs in both decrees.” And again: “We know of no law or rule of practice which authorizes a joint execution upon two separate judgments or decrees.” In the ease of Doe v. Rue it was said: “The judgments in favour of Jeffries and Smith are not joint but several, and they are no authority for the execution under consideration.” Another position to be gathered from these decisions is that it is immaterial as to who are the parties to the separate judgments. The doctrine applies where the parties to the separate judgments, both plaintiffs and defendants, are the same as where such is not the case. In the cases of Merchie v. Gaines, Doe v. Rue, and Bain & Wyatt v. Chrisman, the plaintiffs-in th'e separate judgments were different, but the defendants were the same. But in the cases of Cohen v. Menard and Bigham v. Dover, both plaintiff and defendants were the same in each judgment. Freeman on Executions (3d Ed.) vol. 1, § 16, p. 48, doubts whether this is sound. He says: “Whether in the event of two or more judgments being entered in favor of the same plaintiff and against the same defendant in a single execution may be issued upon both is a question which has been little considered. In Illinois when a single execution issued upon two claims against an estate the court said ‘The execution must follow the judgment and to include two several and distinct claims as two several judgments in one execution as one judgment for the amount of both claims renders the execution fatally defective for a variance from the judgment.’ It will be observed that this language is addressed to the supposed variance rather than to the question whether the two judgments might have been enforced in a single execution, had this been appropriately described therein. In Louisiana on the other hand, it has been held that two decrees foreclosing mortgages upon the same property may be enforced by a single execution.” The decision in the case of Poor v. Hudson, 4 Ky. Law Rep. 349, is possibly to the same effect. It was there held that a single execution issued for the aggregate amount of two bonds executed for the purchase money of land sold under a deeree in equity is valid; both bonds being due and both payable to the commissioner. A judicial sale bond in this state has the force and effect of a judgment, and if not paid may be collected by execution. If-the two sale bonds in this case may be viewed as two separate and distinct judgments, then this case is authority for the position that, where the parties plaintiff and defendant are the same in separate and distinct judgments, a single execution may issue on them to collect the amount due on all. ' But the important thing for one to understand in applying the doctrine that a single execution on separate and distinct judgments is void is whether the case in hand is one involving separate and distinct judgments. What do these decisions have to say on the question as to what is essential to make a ease of separate and distinct judgments? One gathers from them that judgments rendered in separate and distinct cases are themselves separate and distinct. The cases of Cohen v. Menard, Doe v. Rue, Bain & Wyatt v. Chrisman and Bigham v. Dover, were all cases where the judgments held to be separate and distinct were rendered in separate and distinct cases. In Cohen v. Menard, a creditor filed two claims against an estate which, were allowed on the same day as separate claims. This is the Illinois ease referred to by Freeman. It was said: “Where a claim is filed and allowed against an estate, it becomes a judgment.” The ease was the same as it would have been had the claims been against an individual, and two distinct and separate actions had been brought against him at the same time, in each of which a judgment was rendered against him. In Doe v. Rue it was said: “The two judgments — one in favour of Jeffries for $127.03, the other in favour of Smith for $187.90 — are entirely distinct, and have no dependence on each other.” I do not have this report before me, and I take it that these two judgments were rendered in separate proceedings against the judgment defendant. In Bain & Wyatt v. Chrisman, there were two judgments entered by a justice of the peace against the same garnishee. I take it that these judgments were rendered in separate and distinct proceedings against the defendant whose effects had been garnisheed. In Bigham v. Dover, there were two judgments entered in different suits in favor of the same plaintiff against the same defendant. If I am correct in this statement of the facts of these four cases, neither one of them has any help to give in disposing of the vital question as to whether what plaintiffs claim to have been two separate and distinct judgments were in fact such within the doctrine that a single execution on separate and distinct judgments is void. They may therefore be laid aside in the future consideration of the question. What then have the decisions in the other three eases, to wit, Merehie v. Gaines, Stuart & Palmer v. Heiskell’s Trustee, and Stewart v. Morrison to say? As to the case of Merehie v. Gaines, it may be said that the separate and distinct judgments there involved were in a sense rendered in the same case. The devisees of William Bullock, partners of certain land, brought suit against John Fowler and Bruce Winslow to perpetuate testimony in reference to the land. Fowler answered the bill. Winslow was not brought before the court. The ease was heard as to Fowler, and the bill was dismissed as to him, and he was given a decree for his costs. The ease was continued as to Winslow. At a subsequent term the suit was dismissed as to him for want of prosecution, and he was given a decree for his costs. These two decrees for costs were held to be separate and distinct so as to render the single execution issued on both void. The court said: “These decrees, it is true, were rendered in the same case, but they were rendered at different terms of the court, and are virtually as wholly unconnected with each other as if rendered in different suits.” We have no such ease here. What plaintiffs here claim to be separate and distinct judgments can be said, more certainly than there, to have been rendered in the same case, and they were rendered at-the same term of court and are covered by the same entry. This case, therefore, is like the other four. It gives no help on the vital question in hand. It too may be laid aside. What is relied on in the ease of Stuart & Palmer v. Heiskell’s Trustee is set forth in this brief extract from the opinion therein: “The next and only other assignment of error by the appellants, which is that it was error to direct execution to issue severally in favor of Heiskell’s trustee and Massie’s administrator for the sums, decreed to them, respectively, is also not well taken. Both were complainants before the court, — one in the original bill, the other in the cross-bill, — and the provision in the decree giving them the right to have execution severally is both proper and in accordance with the usual practice in such cases.” There is nothing to be gathered from this as to what would have been the holding had such direction not been given and had the question been as to the right to have a single execution issue for both sums, or as to the right of the court to have given a direction for such an execution to issue. The question decided was simply as to the right of the court to give a "direction for execution to issue severally. Then, though the decrees were in the same ease and likely covered by the same entry, they were based on separate and distinct bills; one in the original bill, and the other on the cross-bill. We have no such ease here. Both sums were adjudged on the same bill. This case too can be laid aside as of no help in disposing of the vital question in hand. The last case to be considered is that of Stewart v. Morrison. That was a joint suit by two distributees of an estate on the bond of the personal representative to recover their respective shares thereof as ordered by the probate court to be turned over to them. There was no question involved as to any execution. It was solely as to the validity of the judgment which had been rendered there. The judgment was for a certain sum, “one half to each of said plaintiffs,” and it was provided that each might have execution. The sureties appealed from the judgment and urged that the judgment was erroneous in that it was a joint judgment when the petition declared on separate causes of action. The court said: “This objection to the judgment is not good. It distinctly states the amount each one of the plaintiffs is entitled to and executions may issue in favor of each for one-half of the whole amount and accrued interest.” A mere statement of this case is sufficient to indicate how far away it is from the ease in hand. The result of this consideration of these seven decisions is that they were of no value whatever in determining what I have characterized as the vital question here, i. e., whether what plaintiffs claim were separate and distinct judgments were in fact so. Not a single decision has been cited in support of that position. Nor has anything been advanced calculated to aid in the solution of the question. Indeed the plaintiffs have assumed that this is a ease of two separate and distinct judgments, when the question is whether such is the case. In so doing they have begged the question. Of course if such is the case the execution was void, and the decisions cited uphold this position. They have no bearing whatever on that question. What we have here is an adjudication that the different plaintiffs, to wit, Crawford on the one hand, and Melds, Couch, and Grigsby on the other, recover of the defendant separate and distinct sums of money. It is a single adjudication covered by a single entry made in a single case. It is claimed that there are two separate and distinct judgments because there is an adjudication of separate and distinct sums in favor of separate and distinct plaintiffs. But a single adjudication of separate and distinct sums does not create a separate and distinct judgment as to each sum. This is evident if the adjudication as to each sum is in favor of one and the same plaintiff. No one would say that in case of an adjudication that a plaintiff recover of a defendant a specific sum of money and his costs that there were two separaté and distinct judgments, one as to the specific sum and the other as to the costs. Nor would one say that an adjudication in a single ease that the plaintiff recover of the defendant separate and distinct specific sums of money as well as the costs that there was a separate and distinct judgment as to each sum, and that whether the adjudication is based on a single obligation or on several separate and distinct obligations. It would seem that in such.a case a separaté execution could not issue for each sum, but only a single execution for all the sums and the costs. In 23 C. J. 315, § 17, it is said: “Plaintiff cannot divide his judgment and take out separate executions for different portions thereof. Thus, a money judgment being' entirely separate, executions cannot issue on each of the counts of the complaint although there were finding and judgment on each count separately.” Had Crawford for instance been the sole lessor and plaintiff, and recovered a judgment against the defendant for the minimum rent, of each of the four years involved and his costs, he could not have had a separate and distinct judgment for each of the four years. He would have had but a single judgment on which a single execution could have issued for the collection of the whole amount adjudged. Such being the case, how can it make any difference that the sums adjudged are in favor of separate and distinct plaintiffs ? Why,, in such a case, is it to be said that there is á separate and distinct judgment in favor of each plaintiff when in the other ease there is not a separate and distinct judgment in favor of the one plaintiff as to each sum? The necessities of this ease do not require that I take the position that in every case of an adjudication by a single entry in a single case on a single pleading of separate and distinct sums in favor of different plaintiffs there is but a single judgment on which a single execution can issue. I do not have in mind all the possible cases of this sort that can arisen and I would not unnecessarily take such abroad position. But certainly in every such case if the rights of the several plaintiffs arise by one and the same obligation, and they have the right not only to sue jointly but to seek a joint or several judgment, such an adjudication is a single judgment on which a single execution can issue. It has been held that in an action by a single plaintiff against several defendants on one obligation a single execution can issue on a judgment against some of them obtained at one time and one obtained against the others at another time. In the ease of Walker v. Com., 18 Grat. (Va.) 13, 98 Am. Dec. 631, a suit was brought against a principal and his three sureties. Process was first served on the sureties, and judgment taken against them. It was after-wards served on the principal, and judgment taken as to him. It was held that the plaintiff was entitled to take out a single execution on both judgments. The court said: “The Commonwealth had a right to have her motion against the sureties continued until the notice was served on the principal, and then to take a joint judgment against all; or she had a right to take several judgments against the sureties-and the principal, as they were respectively served with notice, as she did; and she might lawfully have sued out several executions on the judgments as they were obtained. But she chose to wáit after getting judgments against the sureties until she had also gotten judgments against the principal in the joint proceeding against all, and then to sue out joint executions against all. I can see nothing objectionable in this, and certainly nothing of which the plaintiffs in error have any reason to complain.” It is to be noted that, according to this statement, it does not follow that, because .separate executions may issue on a judgment for separate amounts, a single execution cannot issue for all of them. Here Crawford, the Fields, Joseph and Austin, Couch and Grigsby had the right to join in the suit in the Perry circuit court, and, if entitled to a judgment at all against the defendants, were entitled to a joint judgment for the sum of $2,500 a year for each of the four years it was behind in the payment of the minimum rental. By the lease of April 29,1913, the lessee first covenanted and agreed to pay to the lessors, i. e., to them jointly, a rent or royalty of 10 cents per ton, and to mine and remove from the premises beginning May 1, 1914, sufficient tonnage of coal to amount to a minimum rent or royalty of $208.33, and $2,500 per year to be paid to the lessors from month to month whether the lessee removed enough coal to pay or amount to the minimal rental or not. It is true that later on in the lease it was agreed that one-half of the minimum rent and one-half of all the royalties should be payable monthly to the lessor Crawford, and one-half to the other lessors, or as they might direct. But the sole effect of this provision was to render the lessee’s obligation to pay severally as well as jointly. In the case of Schrage v. Hutt (Mo. Sup.) 252 S. W. 658, 660, the contract sued on was to pay “the sum of ten thousand ($10,000) dollars to the said Zula Z. Sehrage and Mary C. Lowe, being the sum of $5,000 to each of them.” The court said: “We think the contract was joint and several, and that both plaintiffs could sue jointly for the whole $10,000, or severally for ■$5,000' each. The agreement was to pay both” together $10,000, or each severally $5,000, and we see no objection to the plaintiffs bringing suit according to the promise contained in the contract.” The plaintiffs not only joined in that suit, but by their petition sought judgment in favor of themselves jointly for $2,500 for eaeh of the four years. It is suggested that the reason why a judgment was not entered in favor of all the plaintiffs jointly for the whole amount due for eaeh year was that Joseph Fields, one of the plaintiffs, had died, and the action had not been revived as to him. But the judgment could have been for $2,-187.50 for each year, with the provision that the plaintiff Crawford was entitled to $1,250 thereof, and the other three plaintiffs to $937.50. However this may be, it is not open to say that, by reason of the judgment having been as it was, it was a separate and distinct judgment in favor of Crawford for. $1,250 per year, and one in favor of the other three for $937.50, within the meaning of the doctrine that a single execution cannot issue on separate and distinct judgments. It would be strange indeed that a single execution cannot issue on a judgment for two separate sums in favor of one of two plaintiffs as to one sum, and of the other as to the other sum; the right of the two plaintiffs arising by virtue of the same obligation and being sought to be enforced by them in one and the same action, and the judgment being covered by a single entry when the judgment could as well have been for the amount of both of the sums on whieh there can be no doubt that a single execution could issue. Then over and above all this the judgment provided that eaeh and all of the plaintiffs might have execution, i. e., that separate executions for the separate amounts adjudged or a single execution for both might issue. It cannot be said that the court did not have the right to give such a direction. So- it was the clerk did have authority to issue the execution. It had the authority of the court whieh had rendered the judgment. The case therefore is without the reason of the doctrine relied on as rendering the execution void. It must be held that this position is not well taken, and that the execution was valid. 2. Whilst the execution was in the hands of the sheriff without a levy, there was no lien for its payment on the estate of the defendant subject to levy. It is conceded, however, that by virtue of section 1660, Kentucky Statutes, an execution binds the estate of the defendant from the time of its delivery to the proper officer to execute. The effect of this is to create a lien for its payment from that time. The Court of Appeals of Kentucky in numerous decisions has recognized this. Reference may be had to only one of them. In the case of Hood v. Pope, 233 Ky. 749, 26 S.W.(2d) 1043,1045, it was said: “It is the general rule, in fact it is statutory law in this state, that an execution binds the estate of a defendant from the time of its delivery to the proper officer. Section 1660, Ky. Stats. The moment that an execution is placed in the hands of an officer for collection a lien is created for its payment on all of the property owned by the defendant in the execution which is not exempted by law.” In the ease of In re Superior Jewelry Co. (C. C. A.) 243 F. 368, 369, it was said: “Since the jewelry in question was personal property physically within the jurisdiction of the sheriff of New York county, Teitelbaum (under ordinary circumstances) had a lien (hereon, or (in the language of the statute) the property was ‘bound by the execution’ from the time he delivered the process to the sheriff, i. e., Feby. 15, 1916.” Indeed that such is the ease is recognized by the statute. Section 1710, subd. 4, provides that, whenever a sale under execution is set aside for any cause not affecting the validity of the execution, such setting aside “shall in nowise destroy or affect the lien created by the execution or the levy thereunder.” In the ease of Waller v. Best, 3 How. 111, 120, 11 L. Ed. 518, it was said: “And whatever doubts might before have been entertained, we must, under the authority of this ease [i. e. Addison v. Crow, 5 Dana (Ky.) 274], regard it as the settled law of the state, that the creditor obtains a lien upon the property of his debtor by the delivery of the fieri facias to the sheriff; that it acquires no additional value or force by being actually levied, but that the lien is as absolute before the levy as it is afterwards, and continues while the process remains in the hands of the sheriff to be executed.” The difference between the lien before levy and that after levy would seem to be that in the one ease it is general and in the other it is specific. • The lien of the execution, however, can be enforced in but one way, and that is by levy and sale. This being so, if the execution is retained, or its return day expired without a levy, the lien is released. It is not necessary to cite any decisions to this effect, as it is well settled that such is the case. It is also well settled that if whilst an execution is in the sheriff’s hands unlevied a junior execution in the hands of another and distinct officer acting under distinct and competent authority is levied the junior execution takes precedence of the senior. Kilby v. Haggin, 3 J. J. Marsh. (Ky.) 208; Million v. Com. to Use of Withers, 1 B. Mon. (Ky.) 310, 36 Am. Dec. 580; Bourne v. Hocker, 11 B. Mon. (Ky.) 23. The binding effect of an execution is really not due to the statute. It has come over from the common law. What the statute does is to change the time of its having such effect from the date of the execution to its delivery to the sheriff. Hence there is room for this qualification of the binding effect of an execution. The reason therefor is thus stated in Kilby v. Haggin: “The only object of attaching a lien to an execution, is to prevent the debtor from defeating the creditor, by alienating or embarrassing his estate. The reason of the law in such a case, does not apply to a competition between execution creditors, and ‘eessante ratione eessat lex.’ Moreover it is but sheer justice, to give the preference to the creditor, who, by his superior industry and vigilance, shall have procured the first levy, on the debtor’s estate. It would seem unreasonable, that a creditor, who had been dormant, or unwilling, or afraid to direct a levy of his execution, or to shew property, to the officer, should take the spoil from a more active and adventurous creditor, after he had found it, and, at his own hazard, shewn its liability. If such were the law, not only injustice, but fraud would be legalized.” It is possible, therefore, that if a creditor of the defendant had secured a personal judgment in this court against it, and had caused an execution to issue thereon and delivered it to the United States marshal who had levied on defendant’s stock of goods and equipment before the sheriff of Perry county had levied the state execution, that such creditor would have obtained precedence over the petitioners. What is here said as to the lien of an execution ceasing by nonlevy or a junior execution acquiring precedence over it if levied first is practically all that plaintiffs are contending for here. It is immaterial to them that an execution creates a lien from the time of its delivery to the sheriff. But it does not follow from these contentions that the petitioners are not entitled to the relief they seek. The plaintiffs must make good their other contentions. 3. The execution was never levied. It is defendant’s position that in order to be a 'valid levy of an execution on the personal property of the defendant it is essential that the officer take actual possession thereof. There must be a change of possession from the defendant to the officer. He must do some act which, if mot protected by his writ, would make, him a trespasser. No doubt this is the general rule. The law on the subject is often stated in this way. But it is recognized that this is not absolutely essential in every case. Something may be done which is the equivalent of such action on the part of the officer. Where the law is thus stated, what is meant is that such is the ease in the absence of the doing of that which is the equivalent thereof. All the authorities cited on behalf of the defendant recognize this. In Demint v. Thompson, 80 Ky. 255, it is said: “He [the officer] must take the possession or control of it.” According to this it is sufficient if the officer take control of the property. It is not necessary that he take possession. In the case of Whitaker v. Tiedemann, 200 Iowa, 901, 205 N. W. 468, 469, it is said: “The officer must do something which will amount to a change of possession, or which is equivalent to a claim of dominion over the property, coupled with power to enforce it.” Here it is sufficient that the officer do something which is equivalent to & claim of dominion over the property, coupled with power to enforce it. It is not essential that he do that which amounts to a change of possession. In the case of Chittenden v. Rogers, 42 Ill. 100, it is said: “The officer must perform some act which not only indicates an intention to seize the property, but he must reduce it to possession, or, at íeast, bring it within his immediate control.” Here it is sufficient that the officer at least bring the property within his immediate control. It is not essential that he reduee it to possession. In the ease of Beekman v. Lansing, 3 Wend. (N. Y.) 446, 20 Am. Dec. 707, it is said: “The goods should be brought within his [i. e. the officer’s] view, and subjected to his control (Haggerty v. Wilber & Barnet, 16 Johns. (N. Y.) 288 [8 Am. Dec. 321]); and it is proper also, if not necessary, that an inventory should be taken of them. The officer should assert his title to the goods by virtue of the execution.” In the ease of Jones v. Howard, 99 Ga. 451, 27 S. E. 765, 767, 59 Am. St. Rep. 231, it is said: “To the completion of a levy, seizure, either actual or constructive, is absolutely indispensable. Actual seizure is accomplished by manucaption of the thing intended to be seized. A constructive seizure is accomplished by the actual reduction by the officer of the property intended to be seized to his own control. He must have brought such property so far under his subjection that he could exercise control over it. He must exercise or assume to exercise dominion by virtue of his writ. He must do some act for which he could be successfully prosecuted as a trespasser if it were not for the protection afforded him by the writ.” What act he could do short of an actual seizure or manucaption which would subject him to prosecution as a trespasser is not indicated. But it is recognized that there may be such a thing as a constructive seizure, and that this is accomplished by the officer reducing the property to his control, i. e., bringing it so far under his subjection that he could exercise control over it or by exercising or assuming to exercise dominion by virtue of his writ. Now these expressions in these several eases as to what is the equivalent of an actual seizure or manucaption the doing of which amounts to a levy are vague, and it is difficult to tell just what is had in mind. But they clearly recognize that there is such a thing as a constructive seizure which is the equivalent of an actual one, and which of itself, without an actual seizure, constitutes a levy. There are some things which it can be said do not constitute a constructive seizure. A mere viewing of the property is not such. The survey which the sheriff made of the stock of goods of the defendant in its commissary and of its equipment was not a constructive seizure. Nor did the indorsement of the levy on the back of the execution amount thereto. It is possible to go further than this and indicate what coming short of an actual seizure will amount to a constructive seizure. It is well settled that if the officer makes an actual seizure he need not retain the actual possession. He may surrender and intrust it to the defendant in the execution. In the case of Beekman v. Lansing, supra, it is said: “But it is not necessary that an assistant of the officer should be left in possession of the goods, or that the goods should be removed. They may be left in the custody of the defendant, at the risk of the plaintiff or of the sheriff, or on obtaining, as is customary, a receiptor for their delivery.” In the case of Richardson v. Bartley, 2 B. Mon. (Ky.) 328, it was said: “We cannot doubt that the officer may, at his own risk, entrust the care and keeping of the property levied on to others, and if he chooses to risk it he may entrust it to the defendants in the execution — in either case they are his mere bailees and keepers of the property, and their possession is his possession.” Again: “To lay down the rule that would prevent the officer from leaving the property in the care of the defendant, if he could trust him, with or without bond and security, would be to establish a rule that would not only subject the defendant to heavy additional costs, in many instances, but put the officer to unnecessary perplexity and trouble. We cannot yield our assent to such a rule.” In the ease of McBumie v. Overstreet, 8 B. Mon. (Ky.) 300, it was said: “He [i. e., the officer] has a right to take the property into immediate possession, or he may leave it in the possession of the debtor or any other person, but the person holding possession after the levy would hold it as the bailee of the officer.” In the case of Hill v. Harris, 10 B. Mon. (Ky.) 120, 50 Am. Dec. 542, it was said: “He [the sheriff] was not bound to take the bricks away, but had a right, at his peril, to leave them in possession of the defendant, or in the place where he found them.” In the case of Williams v. Herndon, 12 B. Mon. (Ky.) 484, 54 Am. Dec. 551, it was said: “Nor do we doubt that if he has made a proper levy, but permits the property to remain with the defendant in the execution, or any other, on a verbal understanding to have it forthcoming on the day of sale, his possession continues so as to entitle him to the action against the bailee or any others who may convert it to their own use, and thus prevent him from subjecting it according to law to the satisfaction of the execution.” In the ease of Howell, Gano & Co. v. Commercial Bank, 5 Bush (Ky.) 93, it was said: “As we construe the action of the sheriff, as shown by his return and proved by himself and others,- the goods were lawfully in his custody when said arrangement was made betwegn Dallam [the creditor] and Hart [the debtor], and the latter was in possession of them afterwards as the sheriff’s bailee; and this arrangetnent to which Dallam seems to have assented at the urgent solicitation of Hart, did not, in our opinion, discharge the levy or affect its validity.” Such then being the ease, why the necessity, in order to a valid .levy, for the officer actually seizing the property? Why may he not assert his right to seize it and notify the defendant of his intention to do so, and if thereupon the defendant agrees to thereafter hold possession of the property for him as his bailee why does this not constitute a valid levy? It has been held that it does by the Court of Appeals of Kentucky in the ease of Carlisle v. Wathen, 78 Ky. 365. There the sheriff met the defendant, and the latter gave up to him certain described personal property to be levied upon to satisfy an execution which he had. The sheriff thereupon indorsed the levy on the execution describing the property, and stating that it was given up to him to satisfy the execution. The property was not present, and the sheriff made no seizure of it. Subsequently a constable levied an execution from the quarterly court on the property. It was held that the sheriff’s levy was valid and had precedence. The debtor apparently did no more than to state to the sheriff that he gave up or surrendered the property to be levied on, and thereupon the sheriff indorsed the levy. The defendant was treated as having agreed to thereafter hold the property for the sheriff as his bailee. The court said: “The general rule is that it is necessary to the validity of a levy upon personal property that the officers should do some act which would be a trespass but for the process.” It theú said: “The reason for this rule, no doubt, is, that the parties, and especially the defendant, should know that a levy has been made' and the property levied upon be known. It would be inexpedient, and might lead to fraud and oppression, if the officer was allowed to keep the fact whether a levy had been made locked up in his own breast. But when the execution ‘ defendant agrees with the officer to surrender certain property to satisfy an execution in the officer’s hands, and the levy is at once indorsed on the writ, there seems to be no reason for holding that such a levy is invalid. And the rule which requires the officer to do some act which, but for the writ, would be a trespass, ought to be restricted to levies made in the ordinary way, and ought not to be applied to a ease like this, in which the defendant voluntarily gives up the property and the officer át once indorses the levy.” Was then a valid levy made here with the principle applied in Carlisle v. Wathen? In determining what was done, I feel that I should accept the sheriff’s testimony on this subject. It is reasonable, and is corroborated in a certain important particular. There is not the slightest room to doubt his testimony that he visited Lennut on July 2, 1929, and made a survey of defendant’s property subject to levy, and on his return to his office he indorsed the levy on the back of the execution. He testified that he at once gave defendant written notice that he had levied the execution on this property just as he had given notice of the receipt of the execution on June 17th. He mailed this notice not to Barbieux, but to defendant at Aliáis, Ky. Barbieux was the general manager of the Columbus Mining Company, which was operating the defendant’s property, and had its office at Aliáis. He was also process agent of defendant, and it must be taken that defendant had an office with the Columbus Mining Company. The statute required it to have a known place of business in this state, and an authorized agent thereat upon whom process could be served. As Barbieux was its process agent, where else would be this place of business except where he was stationed, which was at the office of the Columbus Mining Company, of which he was the general manager? The evidence justifies the finding that, if he was not defendant’s general manager in Kentucky, he was its superior representative there and authorized to act for it as he did act in relation to this execution. It is possible that the sheriff thought that his survey and indorsement constituted a valid levy, but it is not probable. He must have thought that something more was essential, and it is reasonable that he gave defendant notice of what he had done as he testified. It is to be noted that Barbieux failed to produce this notice as well as the former notice of the receipt of the execution. The sheriff further testified that the same day or the day after Barbieux, together with defendant’s attorney, who has not testified herein, appeared at his office. He told them of his indorsement of the levy on the execution, and stated that he would take the property covered thereby into his actual custody on August 5th, the return day, and, to afford the defendant all the courtesy that he could reasonably, he was going to leave the property in its custody, and he expected it to be taken care of and to preserve it. According to his testimony he said that he would leave the property “in your custody,” and that he expected “you to take care of and preserve it the best you can.” The meaning of this was that he was leaving the property in defendant’s custody and he expected it to take care of and preserve it as best it could. It could have meant nothing else. Neither Barbieux nor defendant’s attorney had any custody of the property, and the sheriff could not have expected them or either of them to care for or preserve it. The defendant had the custody of the property through Gevedon, its store manager. It alone could retain custody of it and take care of and preserve it. It is true also that the sheriff did not testify that Barbieux and defendant’s attorney or either one of them agreed to this. He was not asked as to this, but it is reasonably to be inferred that they did. I hav,e said that this testimony of the sheriff is corroborated in. an important particular, and that is as to his telling defendant’s representatives that he was going to take the property into his actual custody on August 5th, the day of the return of the writ. That he did so tell them is corroborated by the fact that this suit was filed and the receiver was applied for and appointed on the early morning of that day, to wit, 8:15 a. m., Hazard time. This can be accounted for only on the ground that plaintiffs knew that the sheriff was going to act thus on that date, and no apprehension was felt that he would do so before that day. The plaintiffs could only have known of this through defendant, and it could only have known it through its representatives. If the sheriff did so tell them, it is natural and reasonable that the understanding was had that in the meantime defendant was to retain custody thereof for the sheriff as its bailee. In so far as Barbieux’s testimony is in conflict with that of the sheriff, it is not of sufficient weight to cause me to hesitate in accepting the sheriff’s testimony as to what took place on this occasion. I must, therefore, hold against defendant here. In my judgment the execution was levied. The defendant contends that if the execution was levied the levy was invalid because the sheriff permitted the defendant to continue selling the goods. In support of this there is cited the decision in the case of Wunderlich v. Boberts, 67 Ind. 421. It may be said that this ease does support this position. The petitioners have taken no notice of it, and I am without help from them. In the case of Howell, Gano & Co. v. Commercial Bank, supra, an attachment was levied on a stock of goods in a store in operation.- It was held that the attachment was released as to goods sold, but held as to those not sold. It was further held that it did not cover goods purchased to replenish those sold. The court said: “We concur in the conclusion of the circuit court, that no lien existed under the attachments on the goods, acquired after they were levied.” In this ease the goods sold between July 2d and August 5th were replaced by goods of about equal value. Possibly it should be taken that it was the understanding that the goods purchased were to take the place of those sold under the levy. There is enough uncertainty on this point to require a consideration of the ease on the basis there was not a valid levy. It does not follow from this that petitioners are not entitled to the relief they seek. The plaintiffs must go farther and make out that invalidity of the levy is fatal to their case. It is their contention that it was. 4. They contend that this is so because the lien of the execution came to an end on August 5th by the expiration of the return day without a levy. It could not thereafter be enforced by a levy. What then as to the effect of this ? Is it fatal to petitioners’ right to relief? It may be conceded that the lien of an execution ceases if there is no levy before the expiration of the return day. This should be qualified by the statement unless a new execution is immediately sued out, which was not done here. Daniel v. Cochran’s Adm’r, 4 Bibb (Ky.) 532; Webster v. Industrial Acceptance Corp., 234 Ky. 613, 28 S.W.(2d) 959. This necessarily follows from the fact that the lien cannot be enforced in any other way than by