58 N.C. 276 | N.C. | 1859
A judgment was rendered at the Superior Court of Orange, at September Term, 1858, for about $1,000, in favor of the administrators of B. L. Durham, against John A. McMannen, who was principal, and plaintiffs Parker, Lockhart, and one C. T. McMannen as sureties, and execution was taken out thereon and put into the hands of the defendant Jones, who is the sheriff of Orange County. This execution was levied on the land owned by J. A. McMannen, being all he owned. Jones had various other executions in his hands issued from Orange County Court of prior test, which were levied on certain personal property, sufficient, as plaintiffs allege, to have satisfied them. This property thus levied on went back into the hands of the debtor on his giving a bond with security for its delivery on the day of sale. Shortly after this the property mentioned was levied on by a constable under judgments and executions in his hands issued by justices of the peace, and the whole of it sold and applied to the satisfaction of these magistrates' judgments. In consequence of this levy and sale by the constable, the sheriff levied these executions of older test on the same land that the Durham execution had been levied on, and on its being sold he applied the proceeds to the others, to the exclusion of the Durham execution (except a small sum). The bill is filed by Parker and Lockhart, two of the sureties in the Durham judgment, against Jones, the sheriff and the administrators of Durham, alleging a combination between Jones the sheriff, McMannen the principal debtor, and one E. G. Mangum, the plaintiff in the constable's executions, to wrest the personal property from the satisfaction of the county court judgments, for which it was abundantly sufficient in value, and to turn them on this property, to which alone the plaintiff could look for the satisfaction of the judgment for which they are liable, as the said J. A. McMannen has become totally insolvent; that the sheriff willfully and negligently forebore to take the said personal property again in execution, but voluntarily abandoned it to the satisfaction of the constable's levies. The plaintiffs insist that the levy of these county court executions on the personal property was a satisfaction of them in law, and that the levy of the execution on (278) which they are sureties of the land was a satisfaction of it, and that the plaintiffs in that judgment and execution have no right to make satisfaction a second time out of them. The prayer is for an injunction to restrain the plaintiffs in the Durham judgment and the sheriff from taking out execution thereon against them or levying the same on their property. An injunction was issued in vacation. At the return term *224 the defendants, the administrators of Durham, demurred to the bill for want of equity as to them, and Jones, the sheriff, answered. A motion was thereupon made to dissolve the injunction, which was refused, and the defendants appealed to this Court. The bill discloses no equity against the defendants Stagg and Davis, the administrators of the creditor. He did no wrong, and it is not charged that he in any way induced or concurred in the supposed misconduct of the defendant Jones, as sheriff, or was connected with the supposed fraudulent combination between Jones and the other defendants. On the contrary, he was the party directly injured by it, and was thereby delayed in the collection of his debt, and it would be strange if that could be made a ground for enjoining his personal representative from proceeding in the exercise of their legal right to make the money due upon the judgment.
The position assumed is, that by reason of the "actings and doings" of Jones, the sheriff, the judgment in question was, in legal contemplation, satisfied. Admit, for the sake of argument, that to be true, the plaintiff has a clear legal remedy, for, upon a writ of audita querela, the Court, where the judgment remains, will order "satisfaction" to be entered upon the record and call in the execution if one has issued; so there is no equity involved and nothing to require the interference of this Court.
(279) But waiving that question, do the matters of fact alleged have the legal effect of a satisfaction? The sheriff, having in his hands prior executions in favor of other creditors, had levied on personal property of the principal debtor of value sufficient for their discharge and permitted the debtor to take the property back into his possession upon his giving a forthcoming bond, and the property is levied upon and sold under executions in the hands of a constable. The execution issuing on the judgment in question, together with the prior executions, are levied on land of the debtor, which is sold by the sheriff, and nearly all the money raised by the sale is applied by the sheriff to the satisfaction of the prior executions and but a small amount is applied to the execution on the judgment in question.
If the sheriff had enforced the forthcoming bond, and by means thereof made the money to satisfy the prior executions, then he could have satisfied the judgment in question out of the money raised by the sale of the land ; but for some cause with which the creditor has no connection, he failed to do so, and thereby but a small sum was applicable to the judgment, and, of course, it remains unsatisfied. *225
If a sheriff levies upon personal property, the title is thereby vested in him and the execution is satisfied, unless the property gets back into the possession of the debtor or is otherwise applied to his use. Collinsv. Bank, 17, N.C. 525. In this case, the property did get back into the possession of the debtor, and was applied to his own use in the discharge of the executions in the hands of the constable, and, besides, the execution on the judgment in question never was levied on the personal property; so the gravamen of the plaintiff is that the sheriff did not enforce the forthcoming bond, and thereby make room for the payment of the judgment out of the money raised by the sale of the land. In this complaint against the sheriff the creditor concurs with them; being himself the party directly injured. How, then, can this omission, malfeasance, or misconduct of the sheriff give to them an equity (280) against his administrators?
Without reference to the answer of the defendant Jones, or the explanation given by him, we are of opinion that the injunction ought to have been dissolved on the motion of the administrators for the want of equity against them, and the order continuing the injunction until the hearing must be reversed and the injunction dissolved.
Whether the plaintiffs can have any relief against the sheriff, or whether, by arranging the debt and taking an assignment from the administrators, they can subject him at law or can work out an equity through the creditors in the prior execution, so as to have relief on the forthcoming bond, are questions into which we will not enter.
PER CURIAM. Decretal order reversed.
Cited: Partin v. Lutterloh,
