7 Wend. 259 | N.Y. Sup. Ct. | 1831
By the Court,
The plaintiff contends that the sale under Dimmick’s execution, producing sufficient to satisfy both that and the plaintiff’s execution, the defendant is
On the other hand, it is maintained that the action is misconceived ; that it should have been case, for a false return, and not assumpsit; that the plaintiff’s judgment was no lien on the mill and mill site, they having been conveyed by Yermilyea to his mother before the judgment was obtained, and that any surplus resulting from the sale of them belonged to Mrs. Yermilyea, the grantee, and not to the plaintiff; that the defendant should have been permitted to show that the 30 acres sold with the mill never belonged to Yermilyea, and of course, that the plaintiff’s judgment was no lien upon it, and the money produced by the sale was neither in law nor equity applicable to the satisfaction of his execution. And finally, that the sale having been made after the return day of the ^plaintiff’s execution, if the money had been actually paid to the sheriff, it could not then have been levied on by that execution.
I am inclined to think the plaintiff cannot recover as for money had and received to his use, upon the evidence in this case. In Denton v. Livingston, 9 Johns. R. 96, it was held that an action of assumpsit would lie against a sheriff for the amount of goods soldby him under a venditioni exponas, though the purchaser to whom the goods were delivered had not' paid and refused to pay the amount of his bid. That, however, was an action brought by the plaintiff in the execution under which the goods were sold, and the sheriff had returned upon the execution that hé had levied upon sufficient goods to sat
In Armstrong v. Garrow, 6 Cowen, 465, it was held, that if a sheriff take a promissory note in satisfaction of a ca. sa. and discharge the defendant, although such note is void as be-ween the sheriff and the maker, and is no satisfaction of the execution, except at the election of the the plaintiff, yet the plaintiff may ratify the transaction, and recover against the sheriff as for much money had and received to his use, with interest from the return day of the execution. If so ratified by the plaintiff, the execution is considered as satisfied, and the note may then be enforced by the plaintiff against the maker. Under such circumstances it was held that the taking of the note by the sheriff" was equivalent to the receiving of the money, so as to sustain an action for money had and received. 11 Johns. R. 468, 518. 3 Mass. R. 403. In the case of Armstrong v. Garrow, the execution had been returned satisfied by the sheriff; and no case has been referred to by the counsel in which an action of assumpsit has been maintained against a sheriff, on the ground that he ought to have applied money in his hands to a particular execution, where such money was not raised by a sale under such execution, and where the sheriff has furnished the party with an ample remedy in another form of action, by having returned the execution nulla bona aut tenementis. In such cases the application to the court has been by motion to compel the sheriff to apply the surplus to the junior execution. 3 Caines, 84. 5 Johns. R. 163. The
What proportion of the $380 was bid for the mill and mill site, and what for the 30 acres adjoining, there is no evidence in the case to show. If, as the defendant offered to prove, Vermilyea never owned the 30 acres, and was not even in possession of them, it is not probable that the purchaser attached much value to them in his bid. I am inclined to think, under all the circumstances of the case, that this evidence ought to have been received. In Denton v. Livingston, the sheriff was permitted to show that some of the property sold by him upon the plaintiff’s execution was not liable to be sold, and for that amount he was held not to
Judgment for defendant.