Halcombe v. Loudermilk, 48 N.C. 491, 3 Jones 491 (1856)

Aug. 1856 · Supreme Court of North Carolina

48 N.C. 491, 3 Jones 491

GEORGE W. HALCOMBE vs. SAMUEL LOUDERMILK

■Where property not belonging to, the defendant in an execution, was levied on, and sold by the officer to satisfy the same, and bought by the plaintiff in the execution at q, price, sufficient to pay the debt, this was held to be a satisfaction, although the property was recovered from the plaintiff in a suit by the owner, and although there was no entry of satisfaction on the execution or judgment.

The plaintiff’s remedy in tills case was under the act of Assembly. Rev. Btat, cli. 45, sec. 22.

Action of debt on a former judgment brought up to the Superior Court of Cherokee, by reoordari, from the judgment of a justice of the peace, and tried at the Fall Term, 1855, of that Court, before Manly, Judge.

The following is a case agreed and submitted for the judgment of the Court.

“The plaintiff had a magistrate’s judgment, dated in 1849, in his own behalf. A fi.fa. was issued thereon, and levied on a sorrel mare, as the property of the defendant. This property was claimed by one Mercer Fain, blit was sold by the officer under the plaintiff’s execution, and bought by him at a price sufficient to pay the debt. Pain brought an action against the officer for talcing the mare, and recovered the value of-the property; which recovery, under an agreement to indemnify the officer previously made, the plaintiff paid. On the trial of that suit, the present defendant was examined as a witness, and swore that the property was not his, but was Pain’s. There was no money paid to the officer, and no ap* plication of any to this debt, nor was there any entry of satisfaction on thefi.fa. It was agreed, that if his Honor should be of opinion that the above state of facts, inlaw, amounts to a satisfaction of the judgment, that judgment of nonsuit should be entered against the plaintiff, otherwise, that he should recover the amount of the judgment and interest.”

The Court gave judgment for the plaintiff, and the defendant appealed.

J. W. Woodfi/n, for plaintiff.

Baxter, for defendant.

Eartle, J.

If a sheriff or other officer have an execution of fieri facias in his hands, payment to him discharges the execution. So, if he levy upon and sell property, and receive the money; and the result will be the same, even if he do not receive the money; because, by the sale, he becomes liable for it to the plaintiff in the execution, and the defendant is discharged by the seizure and sale of his goods. The execution thus becoming fimctios officio, the judgment upon which it was issued must be deemed satisfied, otherwise, (as was said in the case of Murrell v. Roberts, 11 Ire. Rep. 424,) the officer “ might, upon another execution for a trifling sum, ruin any person, since he might raise the money over and over again, by sale after sale.” See, also, Hammatt v. Wyman, 9 Mass. Rep. 138.

In the case before us, the plaintiff in the judgment and execution was the purchaser of the mare, at a price sufficient to discharge his debt; and we think that the law immediately-appropriated the money to the discharge of the execution and the satisfaction of the judgment. The question then, is, could the judgment he revived by the subsequent proceedings ? ¥e think that it could not; and that it made no difference that the defect in the title to the mare was proved by the defendant in the execution, himself. The plaintiff in the execution had a clear remedy; hut not upon his original judgment. The forty-fifth chapter of the Eevised Statutes, section 22, (see, also, Eev. Oode, eh. 45, sec 27,) provides, that where the purchaser at any execution sale, may, in consequence of a defect in the title of the property, have been deprived of it, “ or may have been compelled to pay damages in lion thereof to the real owner,” then, and in every such case, it shall be lawful for such purchaser, his executors, &c., to sue the defendant in the execution, or the person legally representing him, in an action on the case, and recover such -sum as he may have paid for such property, with interest thereon, from the time of such payment.

There was error in allowing the plaintiff to recover on the judgment, instead of pursuing the remedy given by the statute, and the judgment in his favor must he set aside, and, according to the case agreed, a judgment of nonsuit must he entered.

Ejer Curiam.

Judgment reversed*.