Hammond v. Myrick

JBy the Qourt. Nisbet, J. delivering the opinion. [1.] The levy upon the land, was sufficiently accounted for by its dismissal, upon the order of the plaintiff’s attorney. Being dismissed, the judgment lien was unimpaired by the levy. A levy, upon personal property, is prima facie satisfaction — but not so a levy on land. (6 Geo. 410, Ibid 392.) [2.] We think that the cross-interrogatory, was substantially answered, but if it was not, the exception that it was not fully answered, is immaterial to the case; for the cross-interrogatory if answered, as well as the rejected testimony, going to show that the defendant in execution had other property than the slave claimed by Mr. Hammond, sufficient to satisfy the execution is illegal evidence. The claimant insists, that by the Aet of 1811, property in the possession of a third person, not a party to the judgment, can not be levied upon, if there is property in the hands of the defendant sufficient to satisfy the execution, at any time, at or after the date of the judgment. The object of the proof was, to show that there was property in the hands of one of the defendants in execution sufficient to pay it. By Statute, the lien of a judgment, attaches upon all the estate of the defendant owned at its date, or afterwards acquired; and he wdio buys any part of it, buys subject to that lien. This is the general Law, with [79] some modification irrelevant to this question. The Act of 1811, provides, that when the defendant shall point out any property on which to levy the execution, being in the hands and, possession of any person, not a party to the judgment, the. Sheriff shall not levy thereon; but shall proceed to levy on such property, as may be found in the hands and possession of the defendant, who shall, nevertheless, be at liberty to point out what part of his property he may think proper ; which the Sheriff shall be bound to take and sell first, if the same is in the opinion of the Sheriff, sufficient to satisfy such judgment. (Prince, 436.) This Act is, in our opinion, intended to apply to a single case; and that is, where the defendant, being in possession of property, sufficient to pay the execution himself points out property in the hands of a third person. In such case, it is directory to the Sheriff, and he' is forbid to levy on the property in the hands of a third person, until the property, in the hands of the defendant, is exhausted. Its action is limited to cases where the defendant himself points out the property, in the hands of a third person. The very words of the Act so limits it. It is an Act, primarily for the benefit of plaintiffs in execution; but which results, or may result in a protection to purchasers. The mischief was, that a defendant having sold property, liable to judgments against himself, could by pointing it out, put the plaintiff, upon realising out of that, after subjecting him to delay, costs and litigation, whilst holding property sufficient to pay the judgment. To this mischief, this Act applies a remedy, by directing the levy upon the property in the hands of the defendant. The Act does not fetter the plaintiff — his judgment lien is not impaired — he may go upon the property in the hands of the third person, if he pleases. He is not likely so to please and incur the delay of a claim, if the defendant is in possession of property enough to pay him. He has pleased, or has been compelled, in this instance, to move upon the property in Mr. Hammond’s hands. He has the legal right to do so. The property was not pointed out by the defendant in execution. [3.] The objection to the admissibility of the evidence of [80] the attorney, because forbid to testify, by the Act of 1850, is not sustainable, because, this suit was instituted before that Act was passed, and it is prospective in its provisions. Let the judgment be affirmed.