| Ind. | Dec 2, 1853
Scire facias dated June 22, 1849, to revive a judgment. The sci. fa. alleges that on the 27th of February, 1839, Fairman recovered a judgment against Farmer, in the Tippecanoe Circuit Court, for 791 dollars and 74 cents. That on the 16th of March following, a fi. fa. issued; and that, on the 26th of the same month, Cole executed a replevin bond, which, with the execution, was returned by the sheriff, and the bond duly recorded. That execution of the judgment had not been made, but that the same remains unsatisfied.
Cole and Farmer filed five pleas. The first plea alleges that the judgment was founded on a promissory note for 773 dollars and 49 cents, dated February 2, 1837, payable twenty-two months after date, to one Isaac Harter, and by him assigned to the plaintiff, Fairman. That said note, and another of a larger amount, were secured by a mortgage made by the defendant, Farmer, to said Harter, of part of a lot in the town of Lafayette. That in June, 1840, the plaintiff, together with the Lafayette Insurance Company, who held the larger note, filed their bill in chancery to foreclose the mortgage. On this bill that the complainant, Fairman, had a decree for 907 dollars and 32 cents. That in January, 1841, the complainant assigned his interest in the decree to one Stockton, and that in March, 1841, the defendants paid to Stockton 329 dollars and 83 cents. That afterwards, and before the issue
The second plea is similar to the first, with some additional particulars, and avers that the buggy, &c., were received in full satisfaction of the decree.
The third plea does not vary materially from the first and second.
The fourth and fifth pleas are not before us for consideration.
The three several replications to these pleas are in substance the same, and may be stated thus: That as to 230 dollars of said judgment, the plaintiff, before the assignment to Stockton, viz., in July, 1839, assigned that sum, part of said judgment, to one Ellis, on the final record, &c.; that Ellis, in March, 1842, assigned to Philip Harter, and in May, 1849, Philip assigned back to the plaintiff; that as to the remainder of the judgment, except 329 dollars and 83 cents, made by sale of the mortgaged premises, the plaintiff meant and intended by his assignment to Stockton, to transfer the right to that sum only; and that the assignment to Stockton was made in consideration of the payment to plaintiff of 295 dollars only.
To the replications to the first, second and third pleas, the defendants filed their general demurrers. Demurrers sustained, and judgment for the defendants. Fairman appeals.
The law which governed the mortgage (statute of 1831) permitted the payee of the note to proceed on his note at law and on his mortgage in chancery, at the same time. But a satisfaction of either the decree or the judgment was a satisfaction of both. The assignment of the decree to Stockton is in these words: “For value received, I assign my interest in the above decree to Lawrence B. Stockton, with the interest thereon. January 11, 1841. Loyal Fairman.” We can only look to this assignment for what the parties intended. Here is no reservation; nor is there anything in the record to qualify its force.
This Stockton had done prior to the issuing of the scire facias. There is no allegation of bad faith on the part of Cole and Farmer in the payment of the decree to Stockton. He was duly authorized to receive it; and the payment, on their part, was but the discharge of a legal obligation. The receipt of the mortgage by Stockton discharged the debt. The demurrers to the replications were correctly sustained.
The judgment is affirmed with costs.