Rawson v. Davis

Warner, C. J. ' The error assigned to the judgment of the Court below in this case, is in deciding that the junior judgment creditors were entitled to the money, to the exclusion of the older ji. fa. The fi.fa. in favor of Bemis & Prescott, was levied upon the defendant’s property sufficient to satisfy the same. On the 5th day of November, 1858, the defendant paid part of the money due on the fi. fa., and the plaintiffs ordered the levy to be dismissed, the sheriff making the following entry on the fi. fa.: “Levy dismissed by order of the plaintiffs without a sale of the property.” Subsequently the ji. fa. was transferred by the plaintiffs to Rawson, and the defendant paid him two hundred dollars for twelve months’ indulgence thereon, which was not credited on the ji. fa. Upon this statement of facts, it is insisted that Rawson’s fi. fa. lost its lien upon the defendant’s property, and should be postponed in favor of the junior judgment creditors of the defendant. By the 3607th section of the Revised Code, it is declared that “ A levy upon personal property sufficient to pay the debt, maeeoimted for, is prima faeie evidence of satisfaction to the extent of the value of such property, and the dismissal of a levy u/nexplainéd is an abandonment of the lien so far as third persons are concerned.” The levy made on the defendant’s property [514] is accounted for; it was dismissed by order of th’e plaintiffs without a sale thereof. The dismissal of the levy on the execution is also accounted for, or rather explained, so far as to show that it was not satisfied out of the defendant’s property. When a levy has been made on the defendant’s property and dismissed, it must be shown that the execution was not satisfied thereby ; for if it is unexplained, it will be considered as an abandonment of the lien, so far as third persons are concerned. In this case it was explained, and shown that the execution was not paid off or satisfied, either by the money or property of the defendant. A levy upon property, or the dismissal of a levy may be accounted for or explained, as any other facts may be explained. The question in such eases to be settled is, whether the execution has in fact been satisfied, either by the money of the defendant or his property. In the absence of proof to the contrary, the legal presumption is that it has, when the levy is not aeeoimted for, or the clis<missal of the levy is not explained; but like any other legal presumption, it may be rebutted by the facts of the case. In Ryan vs. Liebei’, (30th Ga. Rep., 433,) this Court held that the levy of an execution on personal property, which has been dismissed by the plaintiff or his attorney, without being productive, and when no injury has resulted from such dismissal, sufficiently accounts for and explains such levy, to authorize the plaintiff to proceed with its collection, and to enable it to participate in the distribution of a fund in court, raised from the sale of the defendant’s property, according to its priority. This, in our judgment, is a fair and practical exposition of the rule applicable to such cases. What good reason can be given, why a plaintiff who has levied his execution upon the defendant’s property, and dismissed it, either from motives of humanity or otherwise, without obtaining satisfaction thereof, should lose his lien ? The two hundred dollars paid by Rawson in this case, was not paid to him to release the property of the defendant. The levy had been dismissed by the plaintiffs before the execution was transferred to him; the money was paid to him after he became the owner of the execution, by the defendant, for indulgence, [515] and did not affect his judgment lien upon the defendant’s property. According to the facts presented by this record, the f. fa. controlled by Eawson had not lost its lien upon the defendant’s property, and should not have been postponed in favor of the junior fi. fas. against the defendant. Let the judgment of the Court below be reversed.