Ewing v. Peck

CHILTON, C. J. —Ewing insisted that a judgment which Peck & Clark had obtained against him in the Tuskaloosa Circuit Court was discharged in consequence of Ms certificate of discharge in bankruptcy, and moved in said Circuit Court to quash an alias execution of fieri facias which had issued thereon, and had been levied on his real estate, as well as to enter the discharge of the judgment, and for a perpetual stay of execution. The court, upon the trial of the motion, refused to grant it, and gave judgment against Ewing for the costs. This judgment was reversed by this court, the case sent back, the motion re-tried, and judgment entered quashing the execution ; but the court refused to enter the judgment as discharged by the certificate, or perpetually to stay execution. Pending the motion, and before the judgment quashing the alias fii. fa. was rendered, Peck & Clark sued out a pluries fi. fa., which was placed in the hands of the sheriff of Mobile, and by him levied on the real estate of Ewing, who paid the money to the sheriff on the day after the commencement of the term of the court to which said pluries execution was returnable. Mr. Peck then wrote to Mr. Adams of Mobile, requesting him, if he had not previously sent the money which he had received from the sheriff of Mobile, collected on an execution of Peck & Clark against Samuel B. Ewing, to pay it to Charles Hopkins of Mobile, and it was accordingly so paid. To recover this money, so collected and paid, the appellant brought this action. The court charged the jury, that if théy believed the above facts, they should find for the de [416] fendant. This charge is assigned for error, and presents the only point for our revision. We are of opinion, that the effect of the judgment quashing the execution, upon the ground of Ewing’s discharge in bankruptcy, was to vacate all process issued for its satisfaction. The plaintiffs in that judgment were tendered an opportunity of controverting the discharge, if it had been fraudulently obtained ; but failing to do so, they are concluded by it, until it is reversed, or in some way annulled. The discharge having thus been judicially ascertained, and virtually enrolled as a part of this case, although the court refused to order the judgment to be satisfied or discharged, or a perpetual stay of execution, yet the discharge in bankruptcy relates back to the judgment, and operating a discharge of that, discharges or vacates all process dependent on it, so far as respects the rights of the parties to such judgment. We say nothing as to the rights of purchasers not parties or privies, who may have acquired property at a sale made under the process before the judgment quashing the execution. Under this view of the case, although when the money was collected by the sheriff of Mobile, the execution in virtue of which it was collected was subsisting, yet, being vacated by matter posterior, this action for money had and received lies to recover it back, unless the party receiving it can show some equity, arising out of the same transaction, which justifies its retention.—5 S. & P. 119; 7 Ala. 848; 9 ib. 803; 11 ib. 999, and cases there cited; see, also, 15 Mass. 207; 10 Ala. 313; 22 ib. 425. But it may be said, the judgment, although discharged by the bankrupt’s certificate, constituted a good moral consideration to support a payment, and if the plaintiff in this action made a voluntary payment to the sheriff, after the return day of the execution, and when the sheriff, as such, had no authority to receive it, he cannot recover it back. It is certainly true, that if the payment was voluntary, and made under no mistake as to the rights of the party making it, he cannot afterwards recover it back. But it does not follow that the payment was voluntary, merely because it was made when the sheriff’s authority to enforce the collection had ceased. There was then a subsisting levy upon Ewing’s [417] land, and he was engaged, by the pendency of his motion in the Circuit Court, in an attempt to rid himself of the process. On the other hand, the plaintiffs in the judgment were in pursuit of their debt by legal process, unwilling to await- the action of the court upon the motion to quash, and they treat the money as though it had been collected under the execution, adopting the sheriff’s act in receiving- it. Now we will not say, that the payment, under these circumstances, may not have been voluntarily made ; but whether it was or not, was a question for the jury, and one which the court could not properly determine, — a question of intent, as being the free act of the party, or as being superinduced by the process or levy. If the payment was made to avoid the levy, or if Ewing, to avoid the sale of his land, had promised the sheriff to pay the money, and in fulfilment of the promise had paid it, there would be no propriety in saying that such payment was vohmtary. True, in one sense, it .is a willing payment, but the will is influenced or impelled by the circumstances, growing out of the proceedings to enforce the collection of the judgment. Judgment reversed, and cause remanded.