6 Ga. 392 | Ga. | 1849
By the Court.
delivering the opinion.
In this case, there was, as the bill charges, a partnership debt contracted by Wormack & McLendon, for which they individually gave their note ; suit was brought separately against both, and carried to judgment. The execution on the judgment against McLendon, was levied on his personal property, sufficient to pay it. Pending the levy, it was assigned. The assignees dismissed the levy. If this levy was a satisfaction of the debt against McLendon, it was also a satisfaction of the judgment against his partner and co-debtor, Wormack. The plaintiff can have but one satisfaction. Of this, there is no doubt. Nor is it questioned, that the assignees occupy no better position than the plaintiff himself would occupy. Any act done by them, which, if done by the plaintiff himself, before assignment, would discharge the judgment, would discharge it in their hands.
We state the general principle to be this : a levy is a satisfaction of the execution, so far as to throw upon the plaintiff the burden of showing, either that it was insufficient, or that the proceeds were applied to the satisfaction of prior liens, or that it was
I apprehend it is not to be questioned, that where a levy is made upon personal property, sufficient to pay the debt, it is prima facie, a satisfaction and discharge. If the defendant assents to the release of the levy, or anything can be shown by the plaintiff, in law or in fact, which, without fault on his part, renders the levy unavailable, the presumptions of law against him, growing out of the levy, are removed. The act of the Sheriff is not among those things which will prevent the operation of the rule. It is his duty to seize the property, and he acquires in it a qualified property. He may maintain trover or trespass, if it is taken from his possession. 2 Saund. R. 47, and note 1. 1 Lev. 282. 1 Sid. 438. 1 Vent. 52. 1 Mod. 30. 6 Ib. 291. 6, Johns. R. 195. Such is the Common Law. In case of claims upon levy of attachment or execution by Statute, the Sheriff is required to take forthcoming bonds, payable to the plaintiff. In such cases, his. Common Law liability, so far as it is affected hy this bond, does not continue. In case of levy without claim, he may take a forthcoming bond also, but his liability to the plaintiff continues, by express statutory provision. Prince, 465. By virtue of his office as Sheriff, and his right as such to seize the property, and of his qualified property in it, he is liable to make good a sufficient levy to the plaintiff; and it is for these reasons that no act of the Sheriff, contrary to law, by which the levy is released or made unproductive, will prevent the operation of the rule, that a levy is a satisfaction.
In Clark vs. Withers, it was resolved by the Court, “ that when a.Sheriff had seized, he was compelled to return his writ, and made himself liable at all events, (acts of God excepted,) to answer the value of the goods according to his return, and by the seizure the property was divested out of the defendant, and in abeyance.”
“ That the defendant was discharged, because the plaintiff having made his election, and the defendant’s goods being taken, no farther remedy could be had against the defendant, but against the Sheriff only, &c.” 1 Salk. 323. See also, 6 Mod. 292. 1 Roll. R. 57. 2 Saund. 47, note 1. In the United States, the Common Law on this subject has been very generally recognized. In Peay, adm’r, vs. Fleming, Judge O’Neal says: “ A levy is, in legal contemplation, satisfaction of a fi. fa.; that is, it is presumptive evidence, that satisfaction may result or has resulted from it. But as soon as it is shown how the levy has been disposed of, and that satisfaction has not and could not have resulted from the levy, the legal presumption is rebutted, and the execution may be again levied, if it has not lost its active energy,” &c. 2 Hill’s Ch. R. 99. In Davis vs. Barkley, the Court of Appeals of South Carolina say : “ It is a received rule, that a levy is satisfaction, at least, so far as to throw on the plaintiff the burden of showing, either that it was insufficient, or that the proceeds were applied to the satisfaction of some prior lien, or that it was otherwise rendered unproductive without his fault, or the fault of the officer.” 1 Bailey, 142.
In Ladd vs. Blount, Parsons, C. J. says : “ When goods sufficient to satisfy the judgment, are seized on a fi. fa. the debtor is discharged, even if the Sheriff waste the goods, or misapply the money arising from the sale, or does not return his execution. For by a lawful seizure, the debtor has lost his property in the goods; but the law is different in case of an extent on lands.” 4 Mass. 403. Also, 2 Pick. 586.
In Scribed, &c. vs. Deanes et al. the Sheriff’s return upon two fi. fas. was, that they were executed, and the property released by order of the plaintiff, in consequence of a compromise between the parties.
In Denton, vs. Livingston, Ch. Kent said, “ He, (the Sheriff,) is answerable for the amount of the sale of the sloop, and his excuse for not returning the money is insufficient. Instead of retaining the sloop in his possession, between the levy and sale, he delivered her to Ashley, the purchaser; and as he afterwards sold her to him, and has lost the possession, he is answerable for the money she sold for. There is no other remedy for the plaintiffs. They cannot call upon the original defendant, for the amount of the sloop, for he would plead this seizure in bar.” 9 Johns.R. 98.
In the Ordinary vs. Spann, Mr. J. O’Neal said, “ A levy of a value equal to the debt demanded, undisposed of, is, in law, a satisfaction. This was fully adjudged in Mayson vs. Irby & Day, decided at Dec. Session, 1828, in Columbia, in the Court of Appeals in Equity.” 1 Richardson’s Rep. 434. See, also, Mayson vs. Irby & Day, in a note to this case in Richardson. In the latter case, (Mayson vs. Irby & Day,) the Court of Appeals say, “When a levy is once made, the execution is satisfied.” If the Court there, however, mean to say, that a levy is, per se, and necessarily a satisfaction, we dissent from their rule; holding it, as before stated, a legal presumption of satisfaction. See 23 Wend. 490. 1 Watts & Sergt. 251. 4 Smedes & Marsh, 118. 3 Yerg. 297. 6 Ib. 246. 6 Ib. 305.
To apply this rule to this case. The levy was made on personal property sufficient to pay the debt — unaccounted for, the presumption in law is that it was paid — but it is accounted for, because the bill charges, that if was dismissed by the assignees of the judgment and execution. It is, therefore, accounted for by the fault of the plaintiff’s assignees. The dismissal is their own act. They Iraye voluntarily parted with that which might have been productive to them of payment. The levy and the dismissal was an extinguishment of the judgment. Even if it were not as to the defendant, yet, in this case, it certainly is as to these complainants, because they are third persons affected by it. They are grantees of property held as sureties of Wormack, the co-debtor of Jesse McLendon. The effect of dismissing the levy is to bring the execution against Wormack down upon that property.
The bill farther charges, that the purchase of these judgments and the withdrawal of the levy, was the result of a fraudulent combination between the purchasers and Jesse McLendon, for his (McLendon’s) benefit, to free him from his liability to pay, and to coerce payment out of the property in the hands of claimants. If this levy was collusively dismissed by Jesse McLendon, the defendant, and the owners of the judgment, Chancery will protect third persons from injury thereby. Upon these grounds the injunction should have been granted.
The bill states, that Wormack and Jesse McLendon were partners in trade, and as such, purchased property of Brown and gave their individual note for the purchase money; that the property so purchased went into the concern; that this note was sued to judgment against each, severally; but that the debt was a partnership debt a joint debt against Wormack and Jesse McLendon; that after these judgments were open, Wormack conveyed to the
Let the judgment of the Court below be reversed.