Johnson v. Motlow

47 So. 568 | Ala. | 1908

ANDEBSON, J.

— The proceeds of the sale of defendant’s property, under the execution on the Collier judgment, was pro tanto a satisfaction of the said judgment, and it matters not that the property sold thereunder was the defendant’s exemptions, and that defendant subsequently secured a judgment against Johnson and the sheriff, in trespass, for taking same. As was said in the case of Goodbar v. Daniel, 88 Ala. 588, 7 South. 256, 16 Am. St. Rep. 76: The question whether a purchaser at sheriff’s sale will be relieved from the effect of his bid, on its being made to appear that the defendant in execution had no title whatever to the thing supposed to be sold, or whether his bid is an irrevocable satisfaction of the judgment to the extent of the sum bid at the sale, it one on which the authorities are about equally divided. Freeman on Judgments (3d Ed.) § 478; 2 Freeman on Exemptions (2d Ed.) § 54. The question was settled in this state, as far back as the year 1854, in the case of McCartney v. King, 25 Ala. 681. The principle was stated by Judge Goldtliwaite: “The true doctrine, we think, is this: The purchaser, where the sheriff is not indemnified, buys at his own risk, and, if it should turn out that the defendant in execution has no title to the property, he is notwithstanding liable for the amount of his bid.”

By analogy the said rule would apply, though the property belonged to the defendant, but, because exempt was improperly seized and sold, and the officer was subsequently made liable for same in an action of trespass. The bid being a credit on the judgment, the fact that the defendant subsequently got a judgment' against the sheriff and the plaintiff for taking the property under the execution did not operate to vacate the satisfaction pro tanto of the former judgment. Under the foregoing rule, upon payment of the balance due upon Collier’s judgment, it was satisfied in full, and, as it included the identical debt for which Johnson also obtained a judgment against Motlow, the satisfaction of the former operated ipso facto to discharge the latter, except as to costs, and as the costs were paid the movant .was entitled to a satisfaction of the judgment against him, and the trial court properly granted the motion and ordered the judgment satisfied. —Abercrombie v. Conner, 10 Ala. 295; Lockhart v. McElroy, 4 Ala. 572. The case of Mitchell v. Corbin, 91 Ala. 599, 8 South. 810, has no bearing on the question presented by this record.

The judgment of the city court is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.