Boyd v. McFarlin

Warner, Chief Justice. This case came before the court below on an issue formed upon an affidavit of illegality to an execution, made by the defendant therein. There were two grounds of illegality to the execution insisted on by the defendant in his affidavit. First, that the execution, which had been levied on his property, was proceeding illegally to sell the same, because it was levied thereon on the Yth of January, 18Y6, and advertised to be sold on the first Tuesday in February, 18Y6, and therefore it had not been advertised weekly for four weeks, as the statute requires. Second, that the execution had been paid off and discharged. On the trial of the case, the jury found a verdict in favor of the plaintiff in execution. The defendant made a motion for a new trial on the grounds therein set forth, which was overruled by the court, and the defendant excepted. 1. There was no error in refusing to continue the case, on the showing made therefor by the defendant, as disclosed in the record. 2. The plaintiff demurred to the first ground of illegality taken in the defendant’s affidavit in relation to the advertisement of the property, which the court sustained, and that is one of the grounds contained in the motion for a new trial. The 3649th section of the Code declares, that it shall be the duty of sheriffs to publish weekly, for four weeks, in some newspaper published in their counties respectively, notice of all sales of land and other property, etc., and the question is, whether the publication of the notice of the sale of the land in the newspaper four times in four consecutive weeks, was a compliance with the statute, or whether the publication of the sale of the land should have been made in the newspaper weekly for four weeks, that is to say, weekly for twenty-eight days. In the con [211] struction of this section of the Code, we do not feel authorized to depart from the express words thereof, and to hold that the published notice of the sale of land by the sheriff for a shorter period of time than twenty-eight days, would be a compliance with the statute. The published notice of the sale of land by the sheriff should be published weekly in the newspaper, for four weeks, and this construction of this section of the Code, is in accordance with the ruling of this court in Smith vs. Thompson (3d Kelly's Rep., 23), so far at least as the principle involved is concerned. This is not an attempt to set aside a sale of land made by the sheriff under an execution, but it is an attempt to arrest the illegal proceedings to sell the defendant’s property under an execution levied thereon, by an affidavit of illegality. 3. In our judgment, the court erred in ruling out the evidence offered by the defendant as stated in the bill of exceptions. The theory of the defendant’s case, was that by an agreement with McFarlin, he was to loan him the money to take up the note on which the judgment in favor of Burkes was founded, and that when McFarlin advanced the money and took up the execution, it was done in pursuance of that agreement, and, therefore, it was a payment of the execution so far as McFarlin was concerned. The defendant did not propose to go behind the judgment and show it had been paid off, so far as the plaintiff, Burkes, was concerned. All that he claimed and proposed to show, was that when McFarlin advanced the money to the plaintiff in the execution, that it was his money which he, McFarlin, had agreed to loan him for that purpose. This McFarlin denied, and insisted that it was his own money that he had advanced to the plaintiff in execution as a purchaser, and took a transfer thereof in his own name. Was the money advanced by McFarlin to the plaintiff in execution, so advanced by him as a loan to the defendant to pay off that debt under the agreement as testified to by the defendant, or was the money paid by McFarlin to the plaintiff in execution, paid as his own money, and did he become the purchaser and transferee [212] of the execution, as stated by him in his testimony ? The evidence should have been submitted to the jury, inasmuch as it did not impeach the validity of the judgment obtained in favor of Burkes against the defendant; that was not the object of his testimony, but the object of the defendant’s testimony was to show that the execution was paid off by McFarlin with the money which he had previously agreed to loan him to pay off that debt. Let the judgment of the court below be reversed.