53 Ind. 493 | Ind. | 1876
This was an action by the appellants against the appellees, to enjoin the sale of certain lands upon an execution, and to adjudge the judgment on which it issued satisfied, upon the ground that it had been paid. .
Issue, trial by the court, finding and judgment for the defendants.
The only question involved here is, whether the finding was sustained by the evidence.
The facts, briefly stated and stripped of extraneous matters not affecting the case, are these:
In May, 1871, Ari Armstrong recovered a judgment, in the court of common pleas of said county, against William Wines and others, for nearly seven hundred dollars. This judgment was a lien on certain real estate of Wines’, situate in said county, which has been purchased by the plaintiffs on executions against Wines, issued upon judgments junior to that of Armstrong. These purchases were made, therefore, subject to the lien of Armstrong’s judgment. An execution was issued on the Armstrong judgment in February, 1872, and was placed in the hands of Henry S. Slinkard,
The question arises, whether, on these facts, the judgment should be regarded as paid and for all purposes extinguished, or kept alive for the benefit of Slinkard.
Executions are returnable within one hundred and eighty days from their date. 2 Rev. Stat. 1876, sec. 412, p. 200.
“ If any sheriff shall neglect or refuse to return any execution, as required by law, or shall make a false return thereon, he shall be amerced in such amount as he might and should have levied by virtue of the execution.” 2 Rev. Stat. 1876, sec. 482, p. 222.
It is not controverted that, under the statute above quoted, Slinkard was liable to Armstrong for the unpaid residue of the judgment, at the time the former paid such residue.
We have also the following statutory provision:
There can be no doubt, under this provision, that if Slinkard was “compelled” to pay Armstrong the residue of the judgment, the judgment was not thereby discharged; but Slinkard was entitled to have execution thereon for his use, to reimburse him for the amount he was thus compelled to pay. This, as’ we understand the brief of counsel for the appellants, is conceded. But they claim that the payment made by Slinkard was voluntary, and not compulsory, and, 'therefore, that the case does not come within the statute.
We have come to a different conclusion. Slinkard was liable to Armstrong for the amount of the unpaid portion of the judgment. He was compelled by the law, and under threat of legal proceedings, to pay it. We do not decide that the threat of the suit added anything to the compulsory character of the payment. It seems to us that it was sufficient that Slinkard was by law liable to Armstrong for the money, and that the latter claimed it of him. There was a legal compulsion on Slinkard to pay it, upon Armstrong’s demand.
It is a maxim of the law, that what one may be compelled to do by suit, he may do without suit. No good purpose
We are of opinion that where the officer is liable to the judgment-creditor, and the latter claims payment of him, which is accordingly made, the payment is compulsory, within the spirit and intent of the statute. All the analogies of the law, it seems to us, favor this construction.
The case is totally unlike those that have been cited by counsel for the appellants, in which it has been held that a party who voluntarily pays an illegal claim against him cannot recover it back of the party to whom it is paid; and that such payment will be regarded as voluntary, unless made to release the person or property from process; a threatened action being insufficient to render the payment compulsory. The Town of Ligonier v. Ackerman, 46 Ind. 552, and cases there cited.
An important difference between those cases and that in judgment is found in the difference between an illegal and a legal claim. The law does not compel the payment of the former, while it does of the latter. A party upon whom an illegal demand is made should resist payment, and not supinely pay it, without setting up his defence, expecting to afterwards recover back the payment. But a party upon whom a legal demand is made is justified in making payment without resistance. Such a payment, it seems to us, entitles the party making it to all the rights which he would have if the payment had been extorted by means of a judgment and execution against him, he, of course, taking the burthen of showing, where the fact is material, that the demand.was a legal one which could have been enforced by action against him.
We are of opinion that the finding was sustained by the evidence, and hence, that the motion for a new trial was correctly overruled.
The judgment below is affirmed, with costs.