The Chancellor.
The question raised by the plea in this case is not one of mere irregularity in the execution j for the court does not determine questions of irregularity in a collateral suit. But the plea shows that at the time this execution issued, and for aught that appears to the contrary at the time it was returned by the sheriff unsatisfied, there was no decree of the court authorizing the issuing of an execution for the deficiency reported due upon the master’s sale. The decree stated in the complainant’s bill is not like a judgment at common law ; which, when entered, relates back to the term of the court at which it was pronounced, so as to authorize the issuing of an execution tested as of that term. Even in the case of a judgment, however, the statute does not allow the issuing of an execution until after the record of the judgment is actually
[117] filed. (2 R. S. 360, § 11. Marvin v. Herrick, 5 Wend. 109.) And the case of Barrie v. Dana, (20 John. Rep. 307,) referred to in the opinion of the vice chancellor, shows that it was irregular to issue an execution before the actual filing of the judgment record, even previous to the statute.
Here the decree does not direct the mortgagor to pay the deficiency when it shall be ascertained by the result of the sale, or when the master shall have made out and signed his report. Nor does the filing of the report of the master, stating the amount of the deficiency, entitle the complainant to demand the immediate payment of such deficiency, so as to authorize the issuing of an execution therefor. The decree is that the mortgagor, or other defendant who is personally liable for the mortgage debt, pay the amount of the deficiency reported due, upon the coming in and confirmation of the report of the master. Until the master’s report is confirmed as well as filed, therefore, the deficiency is not payable under the decree j and of course no execution can issue against the property of the defendant previous to that time.
In the case of Marvin v. Herrick, before referred to, the late chief justice intimates that the execution, though a mere nullity until the record was filed, might become operative in the hands of the sheriff from the time of such filing, although delivered to him previously. But even such a principle if adopted in this case would not help the appellant. For the plea contains two averments which, taken together, show that the deficiency was not payable, by the terms of the decree, until after the return day of the execution. The bill states the issuing of an execution on the 10th of January, 1842, returnable on the 14th, and which was actually returned by the sheriff unsatisfied on the 16th of the samejnonth. And as the plea avers that the master’s report was neither confirmed nor filed at the time of issuing the execution, it could not have been confirmed, according to the settled course of the court, at any time previous to the actual return of the execution by the sheriff.
[118] For, by the 110th rule of the court, the order which is to be entered upon the filing of the report is an order nisi, and that does not become absolute until the expiration of eight days from the time of the entry of such order.
The objection that the plea is double does not appear to be well taken. The plea does not set up two good defences to the bill, but two facts merely which go to establish one point, to wit, that the decree for the payment of the deficiency had not become absolute at the time of the issuing the execution, or at any time afterwards while such execution could be legally levied on the defendant’s property. Nor do I think it is a case in which the defendant could have protected himself by a demurrer. For upon - the allegations in the bill, uncontradicted and unexplained, I think the court would have inferred that the deficiency had become due and payable, according to the terms of the decree, previous to the issuing of the execution on the 10th of January, 1842.
The decretal order appealed from must therefore be affirmed with costs,
Loading…