Majority
p. 443SLOCUM against FREEMAN. Court of Appeals ; March Term, 1867.
Headnote
Satisfaction-piece Delivered by Mistake.—Compromise of Judgment.Where, by an agreement between a judgment creditor and a judgment debtor, a compromise of the judgment is made "satisfaction to be entered upon the performance by the defendant of the terms of the compromise, and the satisfaction-piece, by mistake, is delivered to the defendant, who causes the same to be filed, but refuses to perform the conditions agreed on, an action lies to set aside the satisfaction and restore the judgment to its original force, for the full amount, saving the rights of third persons.
Appeal from a judgment.
This action was brought by Hiram Slocum against Pliny and Adam M. Freeman, to compel a cancelation of a satisfaction of a judgment recovered by this plaintiff against these defendants. The facts found by the referee, before whom the action was tried, are these:
1. That on the 17th of March, 1852, the plaintiff recovered a judgment in the supreme court, against the defendants, for the sum of $2,200.19 ; that the judgment-roll was duly filed in the clerk’s office of the city and1 county of New York, and the judgment there duly docketed.
2. That the plaintiff, after the recovery of the judgment, and some time in the winter of the year 1853, agreed to compromise and settle the judgment for the
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sum of $763.95, to be secured by the note of said defendant, Pliny Freeman, payable in thirty months, with interest from the 10th day of February, 1853 ; that to carry out the said agreement, the plaintiff signed and acknowledged a satisfaction-piece of the judgment, dated March 16, 1853, which he delivered to one John W. Martin, with instructions to deliver the same to the defendants upon the receipt of the note of Pliny Freeman for the amount? and payable with interest and in the time before mentioned ; that Martin was not to deliver the satisfaction - piece upon any other terms, nor did Slocum agree to compromise and settle the above judgment upon any other terms than those before mentioned.
3. That the defendants have not complied with these terms, but on the contrary thereof, Martin delivered the satisfaction-piece to the defendant Pliny Freeman, under the impression and belief that the note which he then received for the plaintiff conformed to the agreement, whereas the note was not drawn payable with interest, as the agreement required.
4. That Martin, in due time, and as soon as he discovered the mistake, returned the same to the defendant Pliny Freeman for correction, who then retained the note, and refused to execute a note in conformity with the agreement, or to restore the satisfaction-piece as he was requested to do ; that Freeman having improperly refused to execute and deliver a note in conformity with said agreement, or to return the satisfaction-piece, on or about the 26th of September, 1853, improperly procured the satisfaction-piece to be filed in the clerk’s office of the city and county of New York, and the judgment to be marked canceled of record.
The referee found, as conclusions of law:
1. That the plaintiff is entitled to a judgment.
2. That the satisfaction-piece be vacated and set aside, and the judgment restored to full force, life, and effect.
3. That the whole amount of the judgment is due and unpaid, except the sum of $200, which is to be allowed as of the 30th day of April, 1853; but that such judg
p. 445Cited Bailey v. Day, 26 Me., 88 ; White v. Jordan, 27 Id., 370; Eve v. Wiriely, 2 Strobh., 203 ; Buckham v. Oliver, 3 E. D. Smith., 129 ; Dederick v. Lernan, 9 Johns., 333 ; Seymour v . Minturn, 19 Id., 169; Lounds v. Remsen, 7 Wend., 35 .
ment shall not be a lien on any real estate or chattels real conveyed since the satisfaction of said judgment to bona fide purchasers or incumbrancers by said defendants, or either of them, before the commencement of this action.
Judgment was thereupon entered in conformity with the report in favor of the plaintiff, with costs, and on appeal the same was affirmed at general term; one of the judges, however, being in favor of reducing the judgment to the amount and interest stipulated by the compromise. Thereupon defendants appealed to the court of appeals.
T. R. Westbrook, for the respondent;
The appellants submit no points. The defendants asked for no affirmative relief..
Upon the facts found by the referee the judgment was clearly correct, and as there does not appear to have been an exception taken, nothing is reviewable in this court except the conclusions of law found by the referee. If they are correct there is nothing for this court to pass upon.
It is too plain to need argument or authority to sustain the position that, upon these facts, the plaintiff was entitled to judgment. The original judgment was agreed to be satisfied on certain specific terms and conditions. The defendants did not comply therewith, and, therefore, they were not entitled to have the judgment satisfied except upon payment of the amount due thereon. It is not pretended that they ha-ve ever done, or offered to do this. They did, however, wrongfully obtain a satisfaction-piece, prepared and executed by the plaintiff, and deposited by him with a third party, to be delivered
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on the defendants complying with said terms and conditions. They obtained that satisfaction-piece without complying with said terms and conditions, wrongfully if not fraudulently, and used the same in procuring the cancelation of said judgment of record. The plaintiff was entitled to have said satisfaction-piece canceled, and the lien of said judgment restored. This has been done by the judgment entered in this action, properly guarding the rights of bona fide purchasers or incumbrancers since said judgment was canceled of record.
The judgment was in all respects correct, and should be affirmed with costs.
All the judges concurred.
Judgment affirmed.