| Mo. | Jul 15, 1848
delivered the opinion of the Court.
Boyce sold to the Williams’ a tract of land for the sum of $1200, payable in four equal instalments, and gave them his bond for a title, to be made on the payment of the purchase money, and they gave him their notes for the consideration. Williams went into possession under the purchase, and after making a payment, suffered suit to be instituted for a balance due on one of the notes, and judgment was rendered thereon by a justice of the peace for about $140. Execution was issued upon this judgment, and property of the defendant, sufficient to satisfy the same, was levied upon by the constable; but before day of sale, the parties agreed to rescind the contract, on the condition that if Williams would return the possession, the plaintiff would give him up his notes and release the judgment. Under this agreement, the property levied upon was restored to Williams, and the execution returned to the justice’s office. Afterwards, Boyce sold his interest in the land and the judgment against Williams to one Bacon, who demanded possession of the land from Williams, offering to-have the judgment satisfied on the condition that he would give possession, but Williams refused to give possession. Bacon then issued execution on the judgment, and placed the same in the hands of the constable, who subsequently returned it nulla bona.— Then a transcript of the justices’ docket was obtained and filed in the clerk’s office, upon which an execution was issued by the clerk, which
1. Because the judgment upon which said execution was issued had been paid off and discharged before the issuing of said execution.
2. Because the execution issued upon the transcript of a judgment rendered by a justice of the peace, without any execution having been issued by said justice and legally returned.
3. Because the execution was issued without any order, direction or authority on the part of said plaintiff.
4. Because said execution was issued without authoritj of law.
5. Because said execution is illegal and defective.
The Circuit Court refused to quash the execution — the defendant excepted, and has brought the case here by writ of error.
Two grounds are relied upon here to reverse the judgment of the Circuit Court.
1. The judgment had been satisfied before the emanation of the second execution from the justice’s office.
2. A fieri facias cannot issue against the realty when there is sufficient personalty to satisfy the same.
The levy of an execution by an officer upon property sufficient to satisfy the same, which is afterwards released and restored to the defendant, under an agreement between the plaintiff and the defendant, is not per se a satisfaction of the execution or judgment.
In the determination of motions of this character, the court should look into all the circumstances, and if it be found, upon investigation, that the party complaining is in any wise in default, the court should refuse the motion. The facts of this case fully justify the court in overruling the defendant’s motion; for, although there was an agreement between the parties to cancel the contract, and a willingness evinced on the part of the plaintiff to carry that agreement into effect, yet the defendant refused to restore the possession of the land, thereby defeating the consummation of the agreement. With what propriety, then, can he invoke the aid of the court to relieve him from the dilemma into which he has brought himself?
The return of nulla bona made by the constable on the execution, is conclusive to authorize the issuing of an execution from the clerk’s office on the justice’s transcript. What real injury cam a defendant sustain, even should the return of the constable be false, by the issuing of an execution from the clerk’s office ? He has the right, under the stat
For the foregoing reasons, the judgment of the Circuit Court ought to be affirmed,
the same is affirmed.