Tarkinton v. Guyther, 35 N.C. 100, 13 Ired. 100 (1851)

Dec. 1851 · Supreme Court of North Carolina

35 N.C. 100, 13 Ired. 100

WILLIAM A. TARKINTON vs. DAVID C. GUYTHER.

Where A., a defendant in an execution, placOB funds in the hands of the Sheriff for the satisfaction of the execution, and the Sheriff enters on it “ satisfied,” but, before be makes Ins return, another arrangement is made between the Sheriff and A. and the funds are withdrawn and applied by A to another purpose, upon which the Sheriff strikes out the entry of satisfaction ; Held, that, when sued upon the judgment on which this execution issued, A could not avail himself of this arrangement with the Sheriff in support of a plea of payment, but that the plaintiff, though ho might proceed against the Sheriff, yet had not lost his remedy upon the judgment.

Appeal from the Superior Court of Law of Washington County, at the Fall Term, 1851, his Honor Judge Settle presiding.

This is an action on a judgment rendered in Washington County Court, in November, 1841, against the defendant, and one Fagan, for $137 81, and the pleas are payment and satisfaciion. The evidence was, that, in September or October, 1842, one Davis, then Sheriff of the county, applied to Fagan fo.r a loan of $500, and that Fagan replied, that he had no money of his own, but handed him that sum, and took his receipt and note therefor, telling Davis, at the same time, that he wished it applied to executions against hipa. Afterwards the Sheriff received executions against Fagan, and amongst them was a fieri facias on the judgment of Tarkinton, against Fagan and Guyther ; and ' he also received others against Guyther alone ; and, on the 16th of November following, a Deputy Sheriff applied to Fagan for payment of those, to which he was a party, and Fagan delivered to him the note, or receipt of Davis, and requested him thereout to satisfy the execution of Tarkin-ton, and the Deputy agreed to do so, and entered satisfaction thereon. Afterwards, the Deputy applied also to Guy-ther for payment of the executions against him, but he was unable to raise the money, and an arrangement was then ' made between Fagan, Guyther and the Deputy Sheriff] that' the said sum of $ 150 should be then applied to the execution against Guytlibr alone, instead of Tarkiuton against him and Fagan, and that, when Tarkinton should want his money raised, Guyther should pay the whole of it; and,in conformity thereto, the Deputy Sheriff, by the directions of Guyther, struck out the entiy of “'satisfaction” on the plaintiff’s execution against Fagan and Guyther, and applied' the same amount .to the discharge of the executions against Guyther alone. The Court instructed the Jury, that the evidence did not support the issues on the part of the defendant, and the plaintiff had a verdict and judgment, from which the defendant appealed.

Heath, for the plaintiff-

Smith, for the defendant.

Ruffin, C. J.

The judgment must be affirmed. It is admitted, that directions, at the time of payment, to apply it in satisfaction of a particular execution, would, while things remained in that state, be, pri??za facie, a discharge of the execution, and make it wrongful in the Sheriff to proceed further on it. -And it need not be denied, that, if an execution be against two, and one of them pay money on it, he and the Sheriff cannot afterwards, though before the return, change the application, to the prejudice of the other defendant. For, however that may be, it cannot affect this controversy, because both of the debtors — the present defendant and Fagan — gavo directions to the Sheriff to apply the money to an execution against this defendant alone, and, consequently, not to return the plaintiff’s execution, satisfied. It is the same, then, as if the execuiion liad been against a single person, who, after paying the Sheriff a sum of money, with an intention to discharge it, received the same back, or had it applied to another demand against him in the hands of the Sheriff. The creditor, indeed, might insist, that the Sheriff should hold the money, once in his hands, for him, and he might look to the Sheriff for it. But, as between the debtor and creditor, the latter is not bound do so ; for, as the debtor got his money back, or had the use of it in another manner, before it was conclusively applied, by being actually paid to the creditor, or by the Sheriff’s return of the. fieri facias, the creditor ought to have his election to raise it from the debtor. The case is much the same, as if a Sheriff seize goods to the value of the debt, and the debtor got them before a sale; and that is certainly not a satisfaction. The officer's memorandum on the writ, of the levy or of satisfaction, can make no difference in either case, because it is not a return, until he makes it to the Court; and, in the meanwhile, it is in his power, and, indeed, it is his duty, to alter it, as the truth may require. It would be a reproach to the law, if judgments and executions oould be thwarted by a trick like this, which is too much against morals, not to be also against law.

Per Ci/kiam, Judgment affirmed.