Majority
p. 533Jackson, ex. dem. Spencer, against R. Benedict.
Headnote
pending thfimSor%Ta°fJl ditor obtained a íim^whic'ri "eiifand^Vreai. estate of tbs debtor levied on and sold by the J^erur. *J.® j^3 dlehírg» «ODinent, under the actfor the relief of debtors, roith respect to the imprisonment if their persons, (l XL R°l! Ji.fa, was issued on the first judgment, according to the provisions of the act. It was ftetáthat the lien of the first judgment was suspended during the imprisonment of the debtor, on the ca. sa., and that the new execution could have no priority to any iten created, or right acquired by others,- during the imprisonment; and the sale under t«e second judgment was, therefore, .gbod-.THIS was an action of ejectment for lot No. in Fabius, set down to be tried, at the Onondaga circuit, in June, 1816, and the facts being agreed to by the parties, the following case .was submitted to the court.
Ebenezer Bebeé, on the 9th of July, 1814, recovered iudg- • , • . ' * -J3 7. , , J ° ment in this court, against Oilbert Benedict, to whom the pre- ° r mises in question belonged; and who, on the 22d July, 1814, was imprisoned on a ca. sa. issued on that judgment, returnable
p. 534
ift jít^usíteprii, 1814. -Duririg the time, he was so. impfisonedg ■ Samuil S,-Baldwin recovered a judgment against him, in the Onondaga common pleas, on the 18th of October, 1814, on which judgment Baldwin issued a fi. fa., by virtue-of which the premises jn question were sold, and¡ conveyed by the sheriff tó Isaac HozoeUy Undev whom thedefendant claimed. The deed.6f the sheriff was dated thé13th .March:, 181:5... On (he 29th of May, 1815, Gilbert Benedict was discharged from.his imprison* merit on, -the suit" of Bebee, by the court of common: pleas .of On* ondaga county, pursuant to an act entitled “ an act for the relief of debtors with respect to the imprisoniiient- of; their .peis sons,’’ passed the 9th of April, 1813.[1] Bebce then issued ajli fa. on his ejectment, tested the 13th of May, returnable in Am? gust, 1815, against the’property of: Benedict; ándthe premises in question were levied oh and sold by die sheriff, by. virtue ,bf the jt. fa., to the lessor of the -plaintiff and a deed to him wa;S' executed by the sheriff oti the 7-th bi Sépieniber,. '1815,'
The,only question wps, whether the sale of the premises in question, Under the judgment in-favour of Baldwin, was good as against the lessor .of the plaintiffand it was, agreed, that if the court should be of Opinion that it was good, a judgment of non-suit should :be entered, otherwise, a judgment' was to be given for the plaintiff.
The cause was submitted to the court without argument,
Both parties claim title to the premises in question, under judgments against Gilbert Benedict, in whom the title is admitted to have been duly vested, The judgment under Which the lessor of the pláintiíí claims was first dpcké.ted 5 pnd, admitting that, in ordinary cases- between judgment eredi.tOrs, this would give it priority*' yet, under the circurnslanceS of this case, it must ,be postponed, and preference given to -thé second judgment. On the first-judgment, which was -obtained in this court, a ca:ia. was issuedpand the defendant, Gilbert Benedict, was arrested and imprisoned thereon. Whilst he was so imprisoned* a fi. fa. was issued on; the second judgment, which
p. 535
was obtained in the Onondaga common pleas ; and the premises in question levied upon and sold, and a deed given by the sheriff to Isaac Howell, under whom the defendant claims: Gilbert Benedict, having been discharged from imprisonment, under the act relative to the,imprisonment of the person, a fi, fa. was taken out on the first judgment, and the premises again sold by the sheriff, and purchased by the lessor of the plaintiff. From these facts, it appears that the plaintiff, in whose favour the first judgment was obtained, had made his election as to his execution; and having taken the body of the defendant, he could not afterwards have recourse to his property, except in the special cases provided for by the statute, as where the defendant dies in prison, or where he is discharged under the statute, as was the case here. But these are contingencies which may never occur, and it would be extremely unjust to continue the lien on the property after the body has been taken in execution. It would, in effect, be giving to a ca. sa. an operation upon the land, as well as the body of the defendant. 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 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 any lien created, or right acquired, by others, during the imprisonment of the defendant, Judgment of nonsuit must, accordingly, be entered, pursuant to the stipulation in the case.
Judgment of nonsuit: