Kimball v. Parker
48 Mass. 63
| Mass. | 1843
Shaw, C. J.

The court are of opinion, upon the facts agreed, that the payment of money by Ames and Nesmith was not made in part satisfaction of the execution; that the execution was not thereby in any part satisfied and discharged; and therefore that this action cannot be maintained. The ground on which Ames and Nesmith were liable was, that they held estate liable to the attachment of the judgment; and though they had a remedy over against Kimball, on their covenants, yet they were not limited to that remedy. Had they waited till the creditor had levied his execution, they might have paid the debt and redeemed the land ; but in this case it is obvious, that the debt would have been satisfied by the levy, and the execution no longer in force. So, we think, when it was obvious that their land was inevitably liable to be levied upon, if, to avoid the levy, they had paid the debt, in whole or in part, that would have been such a payment upon compulsion, as would give them a remedy over upon their grantor’s covenant against incumbrances. Preston v. City of Boston, 12 Pick. 7. Boston & Sandwich Glass Co. v. City of Boston, 4 Met. 181. But it would be prima facie a payment of his debt, in whole or in part, and he being liable over to them on his covenant for the amount paid to extinguish an incumbrance against which he had stipulated to indemnify them, it would be in effect a payment out of his funds, and must enure. to his benefit. In that case, it would be held to be paid on account of the execution, and in part satisfaction of the judgment; and this, whether indorsed on the execution, or expressly stated to be in satisfaction, or not.

But we think this is a presumption of fact, which may be rebutted by proof. And therefore if, at the time of the pay*69ment by third persons, not parties to the judgment, nor directly liable for its payment, it is agreed that the sum thus paid shall not be deemed part payment of the judgment, and shall not be regarded as giving them a claim upon their covenants, it rebuts the presumption that money so paid was intended to satisfy the execution, and leaves the creditor at liberty to enforce his execution, as if no such sum had been paid. It is not paid for account of the judgment debtor, and does not come, directly or indirectly, out of his funds. These considerations distinguish this case from those of Hammatt v. Wyman, 9 Mass. 138, and Brackett v. Winslow, 17 Mass. 153. In both those cases, the execution had been actually satisfied by one of the joint debtors, and the attempt was to enforce it, after the creditors had been paid, for the use of one of the debtors. Here, those who paid the money were strangers to the judgment, did not profess to pay it in part satisfaction, but, on the contrary, agreed that it should not be so regarded, either for the purpose of discharg ing the execution, or of charging the judgment debtor on his covenants against incumbrances.

This decision renders it unnecessary to consider the other question arising on the report, namely, whether, if the plaintiff was entitled to this process, it was rightly commenced against Parker, the original judgment creditor, under the particular cir cumstances stated

Plaintiff nonsuit.