Sandford v. Roosa

Spencer, J. delivered the opinion of the court. The deed executed by the defendant’s , deputy, and which is as binding upon him as if executed by himself, conclusively shows, that the sale was made under the plaintiff’s executions, and not under Couch's execution. The deed, then, is an admission of the most solemn nature, that the defendant raised the money on the sale of the debtor’s land, upon the plaintiff’s executions, and he is concluded from controverting that point. If A. and B. have two several judgments against C., and they take out writs of fi. fa., which are both delivered the same day, and the sheriff executes that which was last delivered, by making sale of the debtor’s goods, such sale shall stand good; and the only remedy the one whose execution was first deliren; [164] ed has, is by action against the sheriff' This was so held in the case of Smallcomb v. Cross & Buckingham, (Carth. 419, 420. 1 Salk. 320. and 1 Lord Raym. 251.) and this, too, since the statute of 29 Car. II, c. 3. p. 16., which enacted, that no writ of fi.fa. should bind the property of goods, but from the time of the delivery thereof to the sheriff. That statute was passed to obviate the injustice, as respected bona fide purchasers, of executions binding the property from the teste day of the writs, and it has al ways, since, been held, that the goods were bound from the delivery of the execution to the sheriff. The case cited, therefore, applies; for if the sheriff, as regards goods, can make a valid sale on a junior execution, notwithstanding the precedency of the senior execution, so he can sell lands which are bound from the docketing of the judgment, upon an execution issued pn a junior judgment, and render himself liable to the party whose execution is postponed. It is not, however, necessary, in this case, to go so far. The judgment creditor who had two judgments older than two of the plaintiffs, purchased under all the plaintiff’s executions. He agreed to give for the property 1,275 dollars, to be applied to the plaintiff’s executions. This is evident, not only from the deed itself) but ■ from the paroi proof. The sale did not, in fact, proceed at al! on Couch’s execution. To permit the sheriff to apply part of the money bid, to satisfy Couch’s execution, would render the situation of the judgment creditors extremely unequal ; for, whilst the plaintiff reposed himself on the fact, that the property was selling exclusively on his executions, and would, therefore, have no peculiar inducement to bid beyond the amount of his own executions, Couch may have, probably, purchased the only property from which the plaintiff could expect to have his judgments satisfied, and Couch may have not only all Burr’s property at an under value, but his execution paid out of .the moneys, really, and in fact, bid on the plaintiff’s executions. . In any point of view in which the case can be placed, I am satisfied that the plaintiff ought to have judgment. Judgment far the plaintiff.