McMahon v. Thompson

2 Ind. 114 | Ind. | 1850

Smith, J.

A statement of facts was submitted to the Circuit Court to the following effect:

A judgment was rendered by the Washington Circuit Court in favor of one Hartley, against Archibald and Josiah Spurgin, for 92 dollars and 87-J- cents, in June, 1840. James Thompson had also, in March, 1840, recovered a judgment before, a justice of the peace against the same defendants, upon which an execution issued, and was returned nulla bona. He caused a duly certified transcript of said judgment to be filed and recorded in the judgment-docket of the Circuit Court on the 7th of April, 1840; and, a scire facias having issued, the proceedings resulted in a judgment awarding execution for 117 dollars and 63 cents, rendered on the 5th of October, 1840.

The Salem Savings Institution also recovered a judgment in the same Court on the 29th of September, 1840, against Archibald Spurgin, Charles Hay, John C. Clarke, and Micah Newby, for 609 dollars and 10 cents. This judgment was rendered for a debt in which A. Spurgin was the principal, and Hay, Clarke, and Newby, his sureties. To save the latter from loss as such sureties, Spurgin had, in February, 1840, mortgaged to them certain lands in Washington county.

Executions upon all these judgments having come to the hands of McMahon, who was sheriff of Washington county, he levied them upon the lands thus mortgaged; and, at a sale to satisfy said executions, they were purchased by one Cutshaw at the price of 748 dollars.

The sheriff applied the money thus made — first, to the payment of the judgment in favor of Hartley, rendered in June, 1840, which he satisfied in full; and, secondly, to the payment of the judgment in favor of the Salem Savings Institution; and there not being a sufficient amount to satisfy that judgment in full, he applied none to the judgment in favor of Thompson.

Thompson was present at the sale by the sheriff, and knew that the mortgaged premises had been levied on to satisfy the three executions, and also knew that A. Spurgin, Hay, Clarke, and Newby, had directed the sheriff to levy on those premises to satisfy the execution in favor of the Salem Savings Institution.

The present suit was brought by Thompson against McMahon, the sheriff, to obtain a decision upon the question whether the proceeds of the sale above mentioned ought not to have been applied to the payment of his judgment rendered by the justice of the peace, the transcript of which was filed and recorded in April, 1840, in preference to the judgment of the Salem Savings Institution, rendered in October of the same year; and it was agreed by the parties that if the Court should be of opinion that Thompson's said judgment was entitled to such preference, judgment should be rendered in his favor for the amount necessary to satisfy it. The Court decided that Thompson's judgment was entitled to the preference, and rendered judgment accordingly; whereupon, McMahon appealed to this Court.

R. Crawford, for the plaintiff. II. P. Thornton, for the defendant.

We cannot perceive any error in the judgment of the Circuit Court. The lien of Thompson's judgment, which took effect at the time the transcript was filed and recorded, was, evidently, older than that of the Salem Savings Institution's judgment; and the facts that Say, Clarke, and Newby, held a mortgage to indemnify them as sureties for the payment of the debt upon which the latter judgment was rendered, and that the date of their mortgage was prior to that of Thompson's judgment, did not authorize the sheriff to appropriate the proceeds of the sale to the satisfaction of that mortgage or for the benefit of the mortgagees. He was only authorized, by the executions in his hands,-to sell the interest of the execution-defendants, subject to execution, in the land levied upon; and having made the sale, it was his duty to apply the proceeds to the satisfaction of the several executions according to the priority of the liens of the judgments.

Per Curiam.

The judgment is affirmed with 2 percent. damages and costs, &c.