Fraley v. Steinmetz

The opinion of the Court was delivered, January, 1854, by Lewis, J. This is a scire facias on a mortgage, and we understand the affidavit of defence to state that the goods of the mortgagor, exceeding the value of the debt, have been seized and sold on an execution issued on a judgment entered on a mortgage bond. The proceeds raised by the sheriff’s sale appear, from the affidavit, to be more than the debt; the money was duly received by the sheriff, and was paid by him to the attorney in fact of the plaintiff’s attorney; and the plaintiff in error, in his affidavit, adds that “ the debt has been paid.” It is true that another execution was in the sheriff’s hands, and that he sold under both; but the writ which issued for the mortgage debt was “ the first delivered to the sheriff.” It is also true that other executions came to the sheriff’s hands before the sale. But the sale was on the two first executions. In Hunt v. Beading, 12 Ser. & R. 41, it was held that, “ seizing goods in execution to the value of the debt is a discharge of all responsibility on the part of the debtor, and consequently a discharge of the judgment, and this whether the goods are sold or not; all further remedy being against the sheriff, who becomes exclusively liable, by the seizure." If this be the law, the affidavit discloses a full defence. The plaintiff below has seized and sold the debtor’s goods to the value of the debt on an execution issued for the same debt, and that execution is entitled, by its prior delivery to the sheriff, to receive the money which has been actually paid into the hands of the plaintiff’s attorney. A statement of these facts is sufficient to entitle the defendant to go to the jury. As it was not his business to prove them, it was sufficient to state them without production of the evidence from the records. Patrick Levy was the owner of the mortgaged premises, and the proper terre tenant of the land at the time the scire facias was issued. He has since sold them to John McGlensey, under an agreement that the vendor should defend against the mortgage and bear its responsibility, and the affidavit is made by Levy for and on behalf of himself “ and the said John McGlensey.” That these persons would be prejudiced by the judgment is clear. That they are deeply interested in the result is most manifest. That the first has a just right, in some form, to relieve himself from liability on his warranty by resisting every step in the proceedings tending to charge him, cannot be denied. That the other has a right to object to an unnecessary slander of his title, by a sheriff’s sale for a debt already paid, seems equally free from doubt. Taking the case as stated in the affidavit, there is a just defence, and the parties proposing to make it are not strangers, nor intruders, without any interest to protect. Under such circumstances, the Court should take order for protecting their interests in some way. The judgment ought not to have been given for the plaintiff, when it appears from the affidavit of a party who would be prejudiced by it, that the debt has been already paid. In the con [441] struetion of these affidavits the justice of the case should not he lost sight of in the technicalities of judicial proceedings. Irreparable injury ought not to be permitted for want of a formal application by Levy to make himself a co-defendant in the action. His affidavit, and the facts contained in it, imply a wish, on his part, to be made a party to the record, and the Court, under the circumstances, ought to have made an order for the purpose. If he objected to such an order, this might have justified the disregard of his affidavit. But as the case stood, we think there was error in entering the judgment in favor of the plaintiff below. Judgment reversed and procedendo awarded.