Taylor v. Ranney — 4 Hill & Den. 619

Majority

p. 614

Headnote

On the 25th of March, 1843, the relator purchased and took an assignment of the sheriff’s certificate of sale, duly acknowledged, and presented the same to the sheriff, and demanded a deed both on account of his redemption, and as the owner of the certificate, which the sheriff declined executing without the order of this court.

p. 619

Taylor and others vs. Ranney and Grove, impleaded &c.

A mere levy upon real estate in virtue of a fi. fa., never amounts to a satisfaction. Per Bronson, J.

Where, in scire facias to revive a judgment, the terre-tenant pleaded that the plaintiff issued afi. fa. upon the judgment, and that in virtue thereof the sheriff caused to be levied “ the damages &c. on the goods and chattels, lands and ten» ements” of the defendant; held, not sufficient to show the judgment satisfied, and that the plea was therefore bad.

Otherwise, had the allegation in the plea been that the damages &c. were levied of the goods and chattels, lands and tenements &c. Per Bronson, J.

It is a general principle that transactions between A. and B., whether in or out of court, shall not have such an effect as will take away the previously acquired rights of third persons. Per Bronson, J.

A fi. fa. having been returned satisfied, an entry was made in the docket of the judgment pursuant to 2 R. S. 362, § 26, and the return was afterwards vacated by order of the court: Held, that lands sold by the execution debtor to a Iona fide purchaser, after the entry in the docket and before the vacatur, could not be affected by the judgment.

As against the judgment debtor, however, his heirs &c., such order will operate restrospectively, and carry back the lien of the judgment to the date of the original docket. Per Bronson, J.

Where, in scire facias to revive a judgment, the terre-tenant pleaded'the return of an execution satisfied, an entry upon the docket pursuant to the above statute,

p. 620

and that after such entry he purchased the lands in question in good faith, for a valuable consideration; held, that the plea was bad, inasmuch as it did not set forth a purchase from or under the judgment debtor.

Scire facias to revive a judgment for $873,58, which the plaintiffs recovered in this court against John Cronkhite and Henry Springsteen on the 2d day of May, 1835. Ranney and Grove were summoned as terre-tenants of certain lands, and they pleaded, second, that the plaintiffs ought not to have execution &c., because they say, that, on the 21st of October, 1835, the plaintiffs issued a fieri facias on the judgment to the sheriff of Niagara, by virtue of which writ the sheriff on the same day, the damages, costs and charges aforesaid on the goods and chattels, lands and tenements of Cronkhite and Springsteen, caused' to be levied; and this they are ready to verify See. The plaintiffs replied, and the terre-tenants demurred to the replication.

Vies, fourth, & fieri facias issued as in the 2d plea, and that afterwards, to wit, on the 18th of April, 1836, the sheriff returned the said writ offi. fa., endorsed by the said sheriff satisfied, to the clerk of this court at Geneva, where the same was duly filed, and the said clerk entered in the docket of the said judgment the satisfaction of the same ; and afterwards and before the issuing of the scire facias, to wit, on the first of May, 1838,. the sajd Wells, Ranney and Henry Grove made a Iona fide purchase, and became possessed in fee simple, and for a valuable consideration by them in good faith paid therefor, of the lands and tenements in the scire facias mentioned whereof they were returned tenants. Yerification.

Replication to said fourth plea, that after the making of the said return to the fi. fa., to wit, on the 8th of August, 1838, the said supreme court, by a certain order made in the original action, ordered and granted to the sheriff leave to strike out his return of satisfied endorsed on the fi. fa. then on file, or to alter or amend his said return, or to file a new return to said writ; and under and in pursuance of the order and leave so granted, the sheriff afterwards, to wit, on the 12th of October 1838, did strike out his return of satisfied on the fi. fa.,

p. 621

and did make return thereto that the said writ oifi.fa. was returned by him unsatisfied by the order and direction of the plaintiffs. Verification. Demurrer and joinder.

J. Edwards, for the terre-tenants.

E. F. Smithj for the plaintiffs.

By the Court,

The second plea does not show a satisfaction of the judgment. The allegation is, that by virtue of the fieri facias the damages were levied on the goods and chattels, lands and tenements of the judgment debtors. It should have been, that the damages were levied of the goods &c. A mere levy upon lands never amounts to satisfaction. (Shepard v. Rowe, 14 Wend, 260 .) Nor does a levy upon goods, even where they are of sufficient value to pay the debt, necessarily amount to a satisfaction. (Green v. Burke, 23 Wend. 490 .) Here the levy was upon lands as well as goods, and there is no averment that either or both of them were of sufficient value to pay the debt, or that any sale or satisfaction has followed. The plea is clearly bad.

The fourth plea and the replication to it present questions of more difficulty. A new provision was made in 1830, that a when an execution issued upon any judgment shall be returned satisfied in whole or in part, such judgment shall be deemed satisfied to the extent of the amount so returned as having been collected on such execution, unless such return be vacated by the court. And upon any execution being so returned, the clerk of the court shall enter in the docket of such judgment, the fact that the amount stated in such return to have been levied, has been collected. ” (2 R. S. 362, § 26.) In April, 1836, the sheriff returned the execution satisfied, and the clerk entered the satisfaction in the docket of the judgment. Two years afterwards, Ranney & Grove made a Iona fide purchase of the lands of which they are returned tenants. Three months after that, an order was made by this court al

p. 622

lowing' the sheriff to strike out his return upon the execution and make a new one. The sheriff struck out the original return and made a new one, that the execution was returned unsatisfied by direction of the plaintiffs. Upon this state of facts, and assuming that the plea is well pleaded, we are of opinion that the plaintiffs cannot reach the lands in the hands of these terre-tenants. They purchased at a time when the judgment had ceased to be a lien, and it would be a great hardship Upon them to give such a retroactive effect .to the amendment which the sheriff was afterwards allowed to make in his return as would overreach and defeat their title. If it was the fault of the plaintiffs that the original return was wrong, they ought to bear the burden instead of casting it off upon bona fide purchasers. If the sheriff made a false return, the plaintiffs may have an action against him; and it is much more reasonable to confine them to that remedy, than it would be to allow them to visit the fault of the officer upon innocent third persons. In Lownds v. Remsen, ( 7 Wend. 35 ,) the sheriff was sued for the escape of a prisoner from the jail limits, and he produced a forged satisfaction piece which had been filed with the clerk, and upon the authority of which the clerk had entered satisfaction in the docket of the judgment. This was held to be no justification of the sheriff. But how it would have been had the sheriff acted upon the supposed satisfaction, as by discharging the debtor from actual custody or delivering up the limit bond, Was not decided. Here the terre-tenants have acted and parted with their money upon the faith of the satisfaction. And besides, the satisfaction was not based upon a forgery, but upon the official act of a high public officer.

It is true that the statute, in providing that the court may vacate the sheriff’s return, has not saved the rights of purchasers who may have acted upon the faith of the return. But I think the principle established in Jackson v. Benedict, ( 13 John. 533 ,) covers the case. The statute for the relief of imprisoned debtors gave a new execution against the goods and. lands of the discharged debtor, in the same manner and form

p. 623

as though,he had never been taken in execution, and did not save the rights which any third person might have acquired prior to the discharge. (1 R. L. 349, § 3, 7.) And yet, in the case cited, such rights were protected. It was an action of ejectment, and both parties claimed the land under sales upon judgments against the same debtor. The plaintiff’s judgment was the oldest, and on that the debtor was taken in execution. Pending his imprisonment, another creditor obtained a judgment and sold the land to the defendant. The debtor was then discharged, and the plaintiff thereupon issued execution and sold the same land. Although the plaintiff had the oldest lien, the defendant’s title prevailed. The court said, “ taking the body in execution is a discharge of the judgment, except where otherwise provided by statute, and the imprisonment of the person must be a suspension of the lien. The defendant in such a case would have a right to sell his property, either real or personal; and the execution allowed by the statute to be taken out after the discharge, against his property, cannot claim priority to a lien created or right acquired by others during the imprisonment of the defendant. ” That is a stronger case than the one now before us. There, the second creditor knew that the first had nothing more than a nominal satisfaction by the imprisonment of the debtor, and he knew also that the first creditor would be entitled to a new execution in case the debtor should obtain a discharge. Here, the terre-tenants had record evidence that the plaintiffs had obtained actual satisfaction of their judgment, and they had no reason to suppose that there had been any mistake on the part of the plaintiffs or wrong on the part of the sheriff, which would aúthorize the vacating of his return.

It is a general principle, that transactions between A. and B. whether in or out of court, shall not have such an effect as will take away the previously acquired rights of third persons; and this statute should be so construed as not to revive the lien of the judgment, as against a bona fide purchaser. As against

p. 624

the debtor, his heirs and devisees, and others who will sustain no legal injury, the lien may be revived and carried back to the date of the original docket.

But although the principle of the plea is well enough, it does not state all the necessary facts to make out a good answer. The terre-tenants say they are bona fide purchasers for a valuable consideration; but they do not state from whom they purchased. It may be that the purchase was made from one who was an utter stranger to the title of Cronkhite and Springsteen ; and then the plea is bad, because it does not show that the title under which the tenants hold is paramount to the title of the judgment debtors. If the tenants were aiming at such a defence, they should, perhaps, have said directly that the judgment debtors were not seised of the lands at the time the judgment was do’cketed, or at any time afterwards. (See Com. Dig. Pleader, ( 3 L. 14 ).) But I presume they meant to admit that the judgment was once a lien on the land, and then to set up a purchase from the judgment debtors, or from some person who had acquired their title, intermediate the satisfaction of the judgment and the amendment of the sheriff’s return. The fact of a purchase from or under the judgment debtors is not stated in the plea ; and without that fact, or a denial of the seisin of the judgment debtors, the plea cannot be supported.

Judgment for the plaintiffs.

Cases cited

Green v. Burke 23 Wend. 490 N.Y. Sup. Ct. p. 621
Lownds v. Remsen 7 Wend. 35 N.Y. Sup. Ct. p. 622