Wood v. Torrey

By the Court,

Savage, Ch. J.

The levy by the sheriff upon sufficient personal property to satisfy the execution, previous to the sale of the real estate by the defendant in the judgment, was a satisfaction of the judgment. This is not new doctrine. In Clerk v. Withers, 2 Ld. Raym. 1072, it was held that a defendant whose goods were seized on execution, was discharged of the judgment. Payment to the sheriff on a ji. fa. is a bar to an action on the judgment, though the sheriff do not bring the money into court, nor-pay it to the plaintiff. Cro. Eliz. 209, 391. In Ladd v. Blunt, 4 Mass. R. 403, Parsons, Ch. J. says : 66 Where goods suffi.cient to satisfy the judgment are seized on a fieri facias, the debtor is discharged, even if the sheriff waste the goods, or misapply the money arising from the sale, or does "not return his execution.” Tiiese cases are recognized in Hoyt v. Hudson, 12 Johns. R. 208, where the same doctrine is reiterated. In Ex parte Lawrence, 4 Cowen, 417, Lawrence had levied on personal property to an amount sufficient to satisfy the fi. fa., and then attempted to redeem the debtor’s real estate, which had been sold by virtue of another judgment and execution. For that purpose he applied for a mandamus requiring the sheriff to convey to him. The motion was denied, the coral saying, 66 The levy on the persona! property of Hopping, to an amount sufficient to satisfy Lawrence’s execution, operated, per se, as an extinguishment of his judgment; Lawrence’s judgment ceased to be a lien from the time of the levy, and of course he could not redeem.” The same principle is asserted in Jackson v. Bowen, 7 Cowen, 21, and in Ontario Bank v. Hallett, 8 Cowen, 194. The latter case contains an intimation that no such effect would be produced in relation to a defendant who should fraudulently procure the release of property levied on. Upon that principle this motion was denied, when made in the name and apparently for the benefit of the defendant Torrey. This motion, being made on behalf of a bona fide purchaser, presents a very different case; when he purchased, the plaintiff had levied upon property abundantly sufficient to satisfy his execution. It was his own folly to relinquish the satisfaction which was in his own hands, and an innocent purchaser should not be the sufferer.

This motion must be granted, with costs.