Peale v. Bolton

24 Miss. 630 | Miss. Ct. App. | 1852

Mr. Justice Fisher

delivered the opinion of the court.

This was a writ of scire facias, sued out of the circuit court of Warren county, by Elijah Peale, the trustee appointed by the circuit court of Adams county, on pronouncing judgment of forfeiture against the Agricultural Bank, to revive a judgment recovered by the said bank at the May term,' 1837, of Warren circuit court, against Thomas Bolton and others.

It appears by the recitals in the writ, that a writ of fieri facias was issued upon the judgment, and was by the sheriff levied upon certain lands of the defendants, which were not sold for-want of bidders. It also appears that a pluries vendí. had issued to the sheriff of Hinds county, requiring him to sell said land, and that said writ had not been returned.

The defendants filed a demurrer to the scire facias, which was sustained by the court below, mainly on the ground, we suppose, that the levy on the land was,primd facie, a satisfaction of the judgment.

The law is well settled, that a levy on personal property is, primd facie, a satisfaction of the judgment; because, in such case, both the possession and title to the property are changed. The levy itself vests the title in the sheriff, who is the agent and trustee of both parties to the execution; of the plaintiff first, to make a sale according to law, and to apply the proceeds to the payment of the judgment and costs; and of the defendant, for the surplus, if any, after satisfying the demands of the plaintiff. If, however, upon a fair sale of the property, it should prove insufficient to satisfy the judgment, the levy is only a satisfaction to the amount of the sale.

But a levy upon land affords no presumption of a satisfaction of the judgment, because it does not in any manner interfere with either the possession or title of the defendant. In the case of personal property, the levy itself appropriates it to the satisfaction of the plaintiff’s claim; but a levy upon land has no such effect or operation. No title vests in the sheriff, as in case of personal estate, but he sells the defendant’s title under a power derived from the judgment and execution, and the sale alone is not sufficient to divest the title; but there must be a formal deed executed according to the statute, before the sale is complete.

It is, therefore, manifest that there was no such presumption of a satisfaction of the judgment, shown on the face of the writ, as authorized the court below to sustain the demurrer. The question of satisfaction, tó say the most for it, was merely one of possibility, and should have been shown by the plea, and established by the evidence of the defendants. A failure, however, to make this defence to the scire facias, will not prejudice their right to make it hereafter, if the fact exist. The judgment can only be revived in the name of the trustee, who by law is to represent the bank, and is, therefore, bound in law to enter such credits as were binding upon the corporation before the judgment of forfeiture. The trustee enters the record at the point where the corporation left it, and can only collect so much as the bank was entitled to, if no judgment of forfeiture had been pronounced.

Judgment reversed, and cause remanded.