Smith v. . Erwin

Earl J. This action is brought upon a promissory note made by J. R. Ward and indorsed for his accommodation by the defendant Erwin. Two defenses are relied upon, which I will consider separately. 1. The action was commenced against both maker and indorser, and judgment was entered against the maker, Ward, by default for the whole amount of the note. On the same day judgment was entered against him, execution was issued and delivered to the sheriff thereon, the plaintiffs at the same time directing him not to use or act upon the execution or to make any levy, until further orders from them. During the life' of the execution, Ward had in his open, visible possession abundant personal property to satisfy ■the same. But the plaintiffs did not direct the sheriff to make a levy, until more than six months had elapsed after the issuing of the execution, and then he could not find any property to satisfy the same. - The claim of the defendant, Erwin, is, that by the issuing of the execution, the plaintiffs obtained a lien upon Ward’s personal property sufficient to satisfy the same; and that they, by their directions to the sheriff, lost that lien, and hence that Erwin, known to them to be a mere surety, was discharged. The plaintiffs owed Erwin no active diligence to secure or protect his interests. They were not obliged, on his account, to sue the note, or to enter judgment thereon, or to issue any execution; and they wore under no obligation to him to secure a lien upon Ward’s property, although 'they had opportunity to do so. The Revised Statutes provide that “whenever any execution shall be issued against the property of any person, his goods and chattels, situate within the jurisdiction of the officer to whom such execution shall be delivered, shall be *471 bound from the delivery of the same to be executed; ” 2 E. S., 366 ; and to the same effect is the Code ; § 1405. To obtain this lien, it is not sufficient merely to place an execution in the hands of the sheriff. It must be issued to be executed. Here it was delivered to the sheriff not to be executed. He was to hold it and do nothing with it, until further orders. The plaintiffs had the right thus to direct him; and while he thus held the execution, he became their agent. The execution was dormant, and no lien was thereby acquired upon Ward’s property : (Armstrong v. Garrow, 6 Cow., 465; Walters v. Sykes, 22 Wend., 566; Corning v. Southland, 3 Hill, 552; Boot v. Wagner, 30 N. Y., 17.) Therefore, as no lien was acquired, none was lost; and no harm was done to Erwin of which the law will take cognizance, 2. While this- suit was pending, and execution against Ward ivas in the hands of the sheriff, Ward transferred his personal property to Erwin; and in consideration thereof, Erwin executed to him a mortgage upon real estate for the sum of $2,200. Ward entered into negotiation with the plaintiffs to have them take this mortgage in satisfaction of the execution, and to pay him the balance in money. This they declined to do ; but they offered to take an assignment of the same, and to try to sell it, and to apply the proceeds in satisfaction of the execution, and to pay the balance to Wárd, and the mortgage was assigned to them for that purpose. After they obtained the assignment, they did not try to sell it, and claimed to apply it upon another debt they held against Ward. Ward refused to assent to this ; and upon their refusal to deliver or re-assign the mortgage to him, he executed a satisfaction of the same to Erwin. When the plaintiffs subsequently commenced suit to foreclose the mortgage, Erwin defended ; and it was decided that they did not own the mortgage, and Erwin had judgment for costs. It is impossible to see how these facts furnish any defense to Erwin in this action. The mortgage was not delivered to them to secure this debt. It was delivered to them to *472 sell; and by their omission to sell it—no matter from what motive — they violated no duty which they owed Erwin. They were wholly deprived of the mortgage by his action. He procured it to be satisfied ; and he cannot now set up the claim that they did not malee it available to satisfy this debt. The judgment must be affirmed, with costs. All concur. Judgment affirmed.