The Opinion of the Court was delivered by
Treat, J.The principal question in this case is, whether the amount due on the judgment was paid to the sheriff, as asserted by the complainant in his bill, and acknowledged by the sheriff in his receipt. The charge of payment is denied by both Smith and the sheriff in their answers. The latter alleges that he purchased lands of the complainant, and gave the receipt against the execution in part payment. It is apparent from the whole case that no money really passed to the sheriff; but that, in point of fact, the sheriff purchased property of the complainant, and in consideration thereof, undertook to satisfy the judgment out of his own funds. It is not shown that this arrangement was made by the direction of Smith or with his consent. Did it operate as a legal discharge of the judgment? We unhesitatingly say that it did not. A creditor has the right to require payment of his judgment in the lawful money of the country. The force and operation of an execution is to make the money out of the property of the debtor. The writ is directed to the sheriff as the agent of the law, and not as the agent of the parties; and his powers and duties under it are plain and specific. He is commanded to make the amount of the judgment in money, and pay it over to the plaintiff. The writ is his only authority, and he is bound to execute it in the due course of law. If the money is not voluntarily paid, he must proceed and make it by the seizure and sale of the defendant’s property. Any private arrangement made between the officer and the debtor, without the sanction of the creditor, is illegal, and not binding on the latter.
A reference to a few authorities will show that such is the law. In the case of Griffin v. Thompson, 2 Howard’s (U. S.) R. 244, where the marshal indorsed on the execution that he had received payment in bank notes, the Court refused a motion of the defendant to have satisfaction entered on the judgment, and also refused to quash a second execution issued on the judgment. In the case of the Bank of Orange County v. Wakeman, 1 Cowen, 46, it was decided that the sheriff’s taking a negotiable note for the amount of an execution in his hands, would not operate as a payment of the judgment, even though he had returned the execution satisfied, and the note was afterwards paid by the defendant to a third person, to whom it had been transferred. In Armstrong v. Garrowo, 6 Cowen, 465, where the sheriff took a promissory note in satisfaction of a ca. sa., and discharged the defendant, it was held that the creditor might take out a new execution, or sue the sheriff for an escape. In Codwise v. Field, 9 Johns. 263, where the officer was indebted to the defendant, and gave him a receipt in full of the execution, agreeing with the defendant to pay the plaintiff, the Court decided that there was no satisfaction of the judgment. In this case, the creditor was at full liberty to charge the sheriff with the amount due on the judgment, or to disregard the receipt which had been given and procure another execution.
It is insisted that the sales on the executions should be set aside, on the ground that several tracts of land were sold en masse. There is no evidence in the record that such was the fact. It is not even so charged in the bill. The defendants were not called on to answer or explain such an allegation. The presumption is, if we may presume anything favorable to this officer, that the sheriff performed his duty by exposing the lands for sale in separate parcels.
There is no occasion to determine whether the witness, Goodner, was incompetent on the score of interest, for laying his testimony entirely out of view, the complainant would not be entitled to the relief sought.
This may be a case of much hardship on the complainant, but he has no just cause to complain of the judgment creditor, to whose agent no wrong can be imputed. His remedy is against the sheriff to recover the value of the property received by him.
The decree of the Circuit Court is affirmed with the costs of this writ of error.
Decree affirmed.