Stanford v. Connery

Simmons, Justice. 1. We think the court was right in holding that the execution in this case was not dormant. It was kept alive from the time it was issued in 1870 up to 1878 by various entries. On November 4th of the latter year, it was levied on the property of Hone, the security, and Hone filed an affidavit of illegality thereto, and subsequently a bill, in equity, seeking to enjoin the execution and setting up equities existing between him and Dillon, the assignee of the execution, in whose favor it was proceeding. This bill was afterwards transferred to the circuit court of the United States, and on February 22d, 1887, in that court, this cause and a bill of review filed against Ehrlich, executor of Dillon, were ordered dismissed as settled. So it seems that from the year 1878 to 1887 this execution was held up by the litigation upon the affidavit of illegality and the original bill filed by Hone against Dillon and the bill of review filed by him against Dillon’s executor. It seems from the record that during these years the plaintiff was active in endeavoring to enforce this claim, and he was resisted by Hone, one of the defendants in fi. fa. and the security, and was prevented from collecting the amount due on the execution. This court has frequently decided that any bona fide action on the part of the plaintiff in execution which shows that he intends to keep the judgment alive, will prevent its dormancy. Smith v. Rust, 79 Ga. 519, Gholston v. O’ Kelley, 81 Ga. 19 ; Long v. Wight, 82 Ga. 431, and cases there cited. *741 But it is insisted by counsel for plaintiff in error that while this litigation may have kept the execution alive as against Hone, the security, yet as Miller, the principal, was no party to the litigation, it did not keep it alive as to him ; and he relies upon the case of Mays v. Compton, 13 Ga. 269, to sustain him in that position. We do not think that case should control us in the decision of this, because the facts in it are very different from the facts of this case. In the former case, the litigation was between the creditor, the plaintiff, and Taylor, one of the sureties. Compton, the other surety, was not interested in the litigation, and had paid one half of the debt. There was no reason why the plain - tiff, Mays, could not have had his execution levied upon Compton’s property and collected the whole amount from him. But instead of doing that, he chose to litigate with Taylor, the other surety, and when Taylor defeated him, he then tried to collect the balance due upon the execution out of Compton. This court held that, as between Compton and the plaintiff, the execution was dormant. We apprehend, however, that if Taylor had not succeeded in defeating Mays, and Mays had collected the whole of the execution out of Taylor, and Compton had not paid his part, and Taylor had undertaken to collect Compton’s proportion out of him, the court would not have decided that the execution was dormant as between them; because Taylor’s right to control the execution against Compton would not have accrued till he had paid it off, and the statute would not run against him till his right to enforce the execution had accrued. In this case, the litigation was between the. creditor and Hone, the only security. Hone had no claim or right against his principal, Miller, until he had paid off the execution. As soon as he did this, by virtue of the statute he succeeded to all of the rights of the plaintiff, and had a right to control *742 the execution against Miller, his principal, to reimburse himself for the amount he had been compelled to pay for his principal. Up to that time he had no claim or right against his principal. It required payment of the execution by him to give him any such right. He was no purchaser — no volunteer, but was compelled by the stern j udgment of a court to pay it. When he complied with that judgment, for the first time his right accrued, and the statute did not and could not run against him in favor of his principal until he had the right to control the execution. We think, therefore, that where an execution is levied upon the property of the principal or security, and either litigates the matter in the courts, the statute does not run in favor of the one whose property is not levied upon and who is not a party to the litigation. 2. There was no error in refusing to submit the 2d, 3d and 5th grounds of illegality. We think that the letter of October 4th, 1870, from May, the plaintiff in fi.fa., to Guerard, operated as an assignment of this judgment to Dillon. Dugas v. Mathews, 9 Ga. 510. Dillon being the owner, when Hone satisfied him he was entitled to the execution by operation of law, and could have it assigned to Connery or any one else. If this was a legal assignment, and we think it was, the transfer by May to Collier in February, 1885, and the transfer by Collier to Hankin on the same day, were invalid, because May, the plaintiff in the judgment, had parted with his right and title thereto. W. F. May, the owner of the fi.fa., says in his letter of October 4th, 1870, to his attorney, Guerard, that the execution against Miller and Hone, security, “for my use, in the name of W. H. May, is the property of David H. Dillon, and is subject to his control and direction, and you are hereby authorized to pay the amount over to him when collected, or assign him the execution if he re *743 quires it.” This, as we have seen, was an assignment from May to Dillon, and after this assignment May had no further interest in the judgment, and when May afterwards undertook to assign the judgment to Collier, the title being out of him, of course he could transfer none to Collier. Under the facts as they appeared before the trial judge at the time he .ruled upon this ground, the assignment to Comiery was founded upon the payment made by Hone to Dillon, and there was no evidence that Hone had any notice of the assignment to Collier and Rankin. Therefore there was no error in not submitting this ground to the jury. This disposes of the grounds of illegality not submitted by the court to the jury, except the 7th ground, upon which no point was made. Had it been objected to, doubtless the court would have disallowed it. 3. The 4th and 6th grounds were submitted. These grounds, in substance, are that the execution and judgment had been paid off and satisfied; that Miller had furnished Hone with the money and means to pay off said judgment prior to 1878; that Hone had only paid upon the execution $370.75, and that he had been reimbursed by property which he had bid off of deponent’s for $585, for which Hone was liable and responsible; that Hone had in his hands prior to the payment of any part of the execution $1,000 of deponent’s money, which had been placed in his hands to protect him against the execution, that he had not paid upon the execution — as much as he was liable for, and was received in his hands for his reimbursement; and that Connery, having no interest in the judgment and execution except that which he acquired through Hone, had no right to press the execution for more than Hone might press it against deponent. Upon these grounds the court charged the jury: “If the execution was taken up by Hone with money and means of his own, *744 then the execution can now be collected, and your verdict ought to be for the plaintiff. If a part of the execution has been paid by Miller, and any part is now due, you should find for the plaintiff, because the law requires that a defendant in execution who has partially paid an execution, before he can stop its progress on that ground, must pay or tender in payment the amount due. If the execution has been entirely paid, it cannot be collected, and you should find for the defendant.” We think the court erred in giving these instructions to the jury. Under our law (Code, §2167), a surety, when he pays off a judgment against himself and his principal, can control the same only to reimburse himself for what he has paid. If he buys the judgment at a discount, he can only recover from his principal the money he paid out in the purchase. If the execution is levied upon his property, and he litigates and thereby effects a compromise for less than the amount of the judgment, he can only recover from his principal the amount he paid in the compromise. To illustrate, if Hone compromised this case with Dillon or his executor, and only paid fifteen or sixteen hundred dollars, including the fees paid to Dillon’s attorney, he could not compel Miller, his principal, to pay the whole $3,000 apparently due upon the judgment. The code only allows him to control the judgment for the purpose of reimbursing himself the amount he paid out for his principal. When he does that, the judgment and execution are paid off and discharged. If a security pays off an execution, and has it levied upon the property of his principal, and that principal files an affidavit of illegality alleging that the execution has been paid off, and it appears upon the trial that it has only been partially paid, it is error in the court to instruct the jury that they must find for the security the whole amount of the face of the execution, as the court did *745 in this case. The rule of court upon which the learned judge predicated this charge, in our opinion, does not apply to trials in court, and only prohibits sheriffs from receiving affidavits of illegality when the defendant in ji.fa. admits a part to he due. If the defendant in his affidavit admits that there is something due upon the fi. fa., then the sheriff cannot receive the affidavit unless the sum admitted to be due is paid or tendered. Where the principal alleges in his affidavit that the judgment has been paid off, the sheriff' is bound to accept it, and if upon the trial of the case before the jury it should appear either that it was only partially paid off or that the security had not paid the full face value of the execution, he could enforce it only as to the balance due in the former case, or only as to what he, the security, has paid in the latter. “It is clear that the surety is entitled to recover the amount which he has actually paid with interest. But a surety who compounds a debt for which his principal and himself have become jointly liable, and takes an assignment of that debt to a trustee for himself, can only claim against his principal the amount which he has actually paid.” DeColyar on Guaranties and Principal and Surety, 281. We therefore think that, in the next trial, it should be submitted to the jury to find out how much Hone had paid upon this execution in counsel fees and costs, and in compromising the litigation or otherwise; how much, if any, had Miller placed in Hone’s hands to pay on this execution. Deduct this amount from what Hone paid, and the jury should find for the balance, and the execution proceed for that amount. If the plaintiff' in error insists upon the payment to Nankin as payment of the execution, it should not he allowed to avail him as against Hone, because he knew that Hone’s property had been levied upon, and gave no notice to him of any payment to Nankin, so as to avail himself of it in his litigation with Dillon. *746 4. It was not error to charge that if the property of Miller was levied on at the instance of Hone in 1873, and Hone bid off' the property and did not take it, that fact cannot be used for the purpose of defence by Miller. If Hone bid on the property at sheriff’s sale and refused to take it at his bid, and the property was not resold at a loss, we cannot see how Miller was injured. There is nothing in the record tending to show that the property was ever resold, or if it was, that it brought less than Hone’s bid. A fair inference from the record would seem to show that Miller was not deprived of the property bid in by Hone. If he was injured, his remedy is provided in the code, §§3655, 3656. "We therefore think the court was right in not allowing Miller a credit on the execution for that bid made by Hone at the sheriff’s sale. Judgment reversed.