Shepard v. Rowe

14 Wend. 260 | N.Y. Sup. Ct. | 1835

By the Court,

Nelson, J.

The second and third pleas are bad. A levy upon sufficient personal property to satisfy an execution is a satisfaction of the debt. 4 Cowen, 417. 1 id. 47, n. 12 Johns. R. 207. 4 Mass. R. 403. The reason given is, that by means of the levy the debtor is deprived of his property. It is not so in the case of a levy upon real estate. The debtor, notwithstanding the levy, holds the title and possession, and is in the enjoyment of the profits of the land. There is no satisfaction until sale. In the case of Ladd v. Blunt, 4 Mass. R. 402, it was for this reason decided that an extent of land was no satisfaction until the creditor was seized of the title, and his estate was not complete until the return of the process and delivery of seizin. Here the title cannot be affected until after the sale. It is. true that under the redemption act the title remains in the debter until the expiration of 15 months, and until then he may retain possession; but the creditor realizes his money upon the sale, and the debtor loses the title and possession at the expiration of the 15 months, unless he redeems. It is a mere extension of credit to him. The defendant is not without a remedy, for the court, on application, would stay the suit on the judgment until the sale, and return of the execution. We cannot, however, allow the issuing and levy of an execution upon land to be per se an ex-tinguishment of the judgment, when the defendant has not in fact suffered any loss, and the plaintiff has gained nothing beyond what he already had, by the lien of his judgment.

Judgment for plaintiff.

Note. During the October term the Hon. Jacob Sutherland, one of the Justices of this court, tendered his resignation, which was accepted.