This matter comes before the court upon written stipulation of facts filed with the court by all parties in lieu of the presentment of formal evidence.
From the stipulation come the following facts: defendant Julia A. Sahlin (hereafter referred to as Mrs. Sahlin) and defendant George E. Sahlin (hereafter referred to as Mr. Sahlin) are husband and wife living apart from each other. Mr. Sahlin acquired, on February 1, 1946, title to certain real property located at 1417-29 Sheridan Street in the City of Camden. Mrs. Sahlin brought an action for separate maintenance against Mr. Sahlin in which a consent decree was entered on October 24, 1947, ordering Mr. Sahlin to pay a weekly sum for the support and maintenance of Mrs. Sahlin and their two children. Mr. Sahlin has been and still is in arrearage of that consent decree. On August 20, 1954 Mrs. Sahlin recovered a judgment in the sum of $835 in the Superior Court, Chancery Division, for arrears of maintenance due as of June 16, 1954 under the above recited consent decree. The Sheriff of Camden County, on August 25, 1954, made a levy upon Mr. Sahlin's property at 1417-29 Sheridan Street pursuant to an execution issued out of this court on the judgment of August 20, 1954. Then, on October 15, 1954, the Camden Trust Company obtained a judgment in attachment on this same property in a certain cause then pending for $965 and costs. This judgment was later assigned to the Jenesco Corporation, to whom full satisfaction was made by Mr. Sahlin on September 25, 1958. On October 29, 1954, an order for sequestration was entered,
directing one Clifford J. Shemeley, Probation Officer of Camden County, to sequester these lands. Although a notice of sequestration was prepared for Mr. Shemeley by Mrs. Sahlin's counsel with the suggestion that he sign and file this notice with the register of deeds, such was not done and Mr. Shemeley was discharged as sequestrator by order of this court on September 19, 1958.
On June 20, 1958 judgment was entered against Mr. Sahlin, directing that Mr. Sahlin be removed as executor of the estate of Annie E. Sahlin; that plaintiff in this action, Joseph F. Greene, Jr., Esq., be appointed substituted trustee of the trusts created under the last will and testament of Annie E. Sahlin; and that Mr. Sahlin be surcharged in the sum of $5,794.64 for conversions and misappropriations committed by him as executor of that estate. A levy was subsequently made by the sheriff on the premises at 1417-29 Sheridan Street on July 1, 1959 under a writ of execution issued by the clerk of this court pursuant to the judgment of surcharge.
The plaintiff now seeks a declaratory judgment determining whether Mrs. Sahlin is still entitled to priority status as a levying judgment creditor on the premises at 1417-29 Sheridan Street. The plaintiff, as a junior execution creditor under the judgment of surcharge, alleges that Mrs. Sahlin has either abandoned, released, waived, or used her levy in a manner constructively fraudulent to the rights of the plaintiff, so that her levy should be declared to be subordinate to that of his subsequent levy of July 1, 1959. In support of that contention plaintiff relies upon the failure of Mrs. Sahlin to order the sheriff to proceed with the sale of the premises levied upon. The levy of Mrs. Sahlin was made on August 25, 1954 with the express instructions that the sheriff hold "the execution and levy for further instructions." Although approximately five years elapsed before the institution of this action, no further instructions regarding the sale of these premises under this levy were given to the sheriff by Mrs. Sahlin.
Under the common law the rule was that any delay at the order of the levying creditor in an execution sale deems that execution constructively fraudulent per se and thus subordinate to subsequent executions. See Annotation, 86 A.L.R. 1412 (1932), and the cases cited therein; In re C. Lewis Lavine, Inc. , 36 F. Supp. 351 (D.C.N.J. 1941). However, New Jersey has long departed from the rigid rule of the common law in this respect. There is no irrebuttable presumption of fraud in New Jersey; however, certain acts may be evidence of fraud. In Cumberland Bank v. Hann , 19 N.J.L. 166 (Sup. Ct. 1842), several principles in regard to priorities of writs of execution were stated. Among them was the following:
"Fourth. If the sheriff is unwilling to leave the goods in the defendant's possession, at his own risk, he may do so by the direction or consent of the plaintiff, and at the plaintiff's risk as to waste, loss or destruction, without thereby losing his legal custody of them, or the plaintiff's priority, if it is done in good faith. But if they are so left for several years, or an unusual or unreasonable time, and the defendant is permitted to use and enjoy them as before the levy, it may be evidence of a fraudulent intent in law, more or less strong according to the circumstances, and of which the court must judge, whenever the question arises."
In Caldwell v. Fifield & Matthews , 24 N.J.L. 150 (Sup. Ct. 1853), the Supreme Court reaffirmed that principle. Chief Justice Green, speaking for the court, at page 155 stated:
"It is equally well settled in this state that the plaintiff, when he delivers his execution to the sheriff, or at any time afterwards, may direct the sheriff not to proceed to a sale without further orders from him, or unless urged on by younger executions, without thereby losing his priority, provided it be done in good faith. Sterling v. Vancleve , 7 Halst. 285 [12 N.J.L. 285]; James v. Burnet, Spencer 635 [20 N.J.L. 635]; Cumberland Bank v. Hann , 4 Harr. 166 [19 N.J.L. 166]."
However, Mrs. Sahlin contends that Caldwell v. Fifield & Matthews, supra , overruled Cumberland Bank v. Hann, supra. A careful analysis of the Caldwell opinion reveals that Mrs. Sahlin's ...