48 N.C. 491 | N.C. | 1856
The following is a case agreed and submitted for the judgment of the Court.
"The plaintiff had a magistrate's judgment, dated in 1849, in his own behalf. A fi. fa. was issued thereon, and levied *492 on a sorrel mare, as the property of the defendant. This property was claimed by one Mercer Fain, but was sold by the officer under the plaintiff's execution, and brought by him at a price sufficient to pay the debt. Fain brought an action against the officer for taking the mare, and recovered the value of the property; which recovery, under an agreement to indemnify the officer previously made, the plaintiff paid. On the trial of that suit, the present defendant was examined as a witness, and swore that the property was not his, but was Fain's. There was no money paid to the officer, and no application of any to this debt, nor was there any entry of satisfaction on the fi. fa. It was agreed, that if his Honor should be of opinion that the above state of facts, in law, amounts to a satisfaction of the judgment, that judgment of nonsuit should be entered against the plaintiff, otherwise, that he should recover the amount of the judgment and interest."
The Court gave judgment for the plaintiff, and the defendant appealed.
If a sheriff or other officer have an execution of fieri facias in his hands, payment to him discharges the execution. So, if he levy upon and sell property, and receive the money; and the result will be the same, even if he do not receive the money; because, by the sale, he becomes liable for it to the plaintiff in the execution, and the defendant is discharged by the seizure and sale of his goods. The execution thus becoming functusofficio, the judgment upon which it was issued must be deemed satisfied, otherwise, (as was said in the case of Murrell v. Roberts, 11 Ire. Rep. 424,) the officer "might, upon another execution for a trifling sum, ruin any person, since he might raise the money over and over again, by sale after sale." See, also, Hammatt v. Wyman,
In the case before us, the plaintiff in the judgment and execution *493 was the purchaser of the mare, at a price sufficient to discharge his debt; and we think that the law immediately appropriated the money to the discharge of the execution and the satisfaction of the judgment. The question then, is, could the judgment be revived by the subsequent proceedings? We think that it could not; and that it made no difference that the defect in the title to the mare was proved by the defendant in the execution himself. The plaintiff in the execution had a clear remedy; but not upon his original judgment. The forty-fifth chapter of the Revised Statutes, section 22, (see, also, Rev. Code, ch. 45, sec. 27,) provides, that where the purchaser at any execution sale, may, in consequence of a defect in the title of the property, have been deprived of it, "or may have been compelled to pay damages in lieu thereof to the real owner," then, and in every such case, it shall be lawful for such purchaser, his executors,c., to sue the defendant in the execution, or the person legally representing him, in an action on the case, and recover such sum as he may have paid for such property, with interest thereon, from the time of such payment.
There was error in allowing the plaintiff to recover on the judgment, instead of pursuing the remedy given by the statute, and the judgment in his favor must be set aside, and, according to the case agreed, a judgment of nonsuit must be entered.
PER CURIAM. Judgment reversed.