Martin v. Quinn

By the Court, Rhodes, J.: This is an action, as we construe the complaint, by the assignees of judgment debtors, to recover from the judgment creditor money received by the latter at a Sheriff’s sale of the debtor’s property, in excess of the amount due upon the judgment. The allegation of the assignment of the demand is sufficient, when taken in connection with the facts out of which the demand arose. Had this been an action on the bond annexed to the complaint, it might be- material to inquire whether it was such a bond as the former statute required on an appeal to the County Court from a judgment of the character mentioned [58] in the complaint, and was sufficient to bind the sureties; or whether the sureties were liable when the bond was not executed by the principals; but the case does not require the solution of these questions. Although the plaintiffs might not be liable as sureties, the judgment creditor demanded of them the money due upon the bond, and they paid the same, “to be applied by him in satisfaction of so much of said judgment.” The payment was appropriated by them to the satisfaction, in part, of the judgment, and the demand by him of the amount of the bond, which was executed, nominally, to secure the performance and satisfaction of the judgment, clearly shows that the money was received by him i'n part payment of the judgment, though he may have neglected after that time to place the proper credit upon the judgment or execution. The payment of a debt by a person not legally responsible for it is a satisfaction of the debt, if the money is accepted for that purpose. And so, bore, the payment on the one part, and the acceptance on the other, of the sum of five hundred dollars, operated pro tanto as a satisfaction of the judgment. The judgment debtors were entitled to a credit for that amount, and the creditor having received that amount in excess of what was due him from the proceeds of the execution sale, became liable to the judgment debtors for such excess. It is upon this demand that the plaintiffs, as assignees, bring suit. The allegation that the judgment remained unpaid and unsatisfied at the time the payment was made by the sureties upon the bond, is a sufficient allegation that the judgment defendants had not paid the judgment. The demurrer, in our opinion, was properly overruled. Judgment affirmed, and remittitur directed to issue forthwith. Mr. Chief Justice Sawyer expressed no opinion.