Hurlbut v. Mayo

Williams, J. The complaint sets forth, that in September, 1820, Mayo, the defendant, recovered judgment against Hurlbut, the complainant. — That an execution issued thereon, which was extended on certain lands described in the complaint, and the execution returned, as having been regularly levied on those lands in. satisfaction of the judgment and execution. — That the land described in the Sheriff’s return on saidt execution, was not shewn to the appraisers, or appraised by them; but that a different tract of land, containing the same number of acres, was shewn to and appraised by the appraisers, which is of far less value than the land described in the return: and the question is, whether on this complaint the plaintiff is entitled to relief. On the part of the defendant it is urged, that if the levy is irregular, Mayo has acquired no title to the land thereby, and that his entry thereon would be a trespass.!. This position is certainly incorrect. The judgment and execution being regular, and the levy and return apparently so, they are conclusive, not only as to these par. ties, but as to all others, until set aside, and cannot be controverted, in any action of trespass or ejectment, where the title • to the land comes in question. It has also been said that the plaintiff must resort to a Court of [391] Chancery to set aside the proceedings on this execution, if the judgment creditor has been guilty of any fraud, iifobtaining the return of the Sheriff on the execution. It is certainly unnecessary to inquire whether the complainant would be entitled to relief in a Court of Chancery, because it will not follow, if he has, or might have a. remedy by application to a Court of Chancery, that he cannot also obtain relief in a Court of Law. Still if he is not by law entitled to relief by audita querela, judgment must he against him, and he must seek relief in such other mode as he may be advised is adapted to the case. There can be no doubt in this case, but that the levy of the execution was irregular, and that the injury sustained by the complainant, is of that nature that he is entitled to relief; and the Court would on motion, probably, set aside the levy. In the case of Johnson ex dem. Vanderlin & Bets v. Newton and others, 18 John. 355, it is decided that if the Sheriff proceed irregularly in the sale of real estate on execution, the Court, on motion, will set aside the sale; and it appears to us that there can be as little doubt but that the writ of audita querela is a proper remedy in this case. The process of the Court has been injuriously employed to the damage of the complainant, and he has had no opportunity of being heard in Court. And notwithstanding he might have had relief in a more summary manner by motion, yet this must be considered as a concurrent remedy. In Hobart’s Reports, between Case and Barneby it is decided that if the Sheriff on an elegit deliver a- moiety of the land of the defendant which is ancient demesne, though it be admitted that this is not extendable, yet the defendant cannot avoid it by entry without an audita querela. It also appears from first of Roll’s Abr. 305, pi. 8, between Rowe and Weeks it was adjudged, that if the Sheriff upon an elegit take an inquisition, and it appear, according to the value found, that more than a moiety of the land subject to the extent according to the value found, is delivered to the party who recovered, that this is voidable by audita querela. And in 4 Mass. Rep. 483, Johnson v. Harvey, it is decided that if an execution issue irregularly on a regular judgment, and award of execution, the remedy for the party injured is either by audita querela or by motion to the Court to set it aside. [392] The Court are of opinion, that the complainant in this case has sustained an injury, by the proceedings on the execution set forth in his complaint, and that he is entitled to the relief prayed for in his writ. There must therefore be Judgment for the complainant.