Folsom v. Carli

By the Court Emmett, C. J, The indorser of a promissory note may, at any time after it becomes due, pay the amount to the legal holder, and at once proceed to enforce it against the maker, or in case several judgments have been obtained on such an instrument, against him and the maker, may pay the judgment against himself, take an assignment of that against the maker and enforce it in his own behalf. These are propositions too well settled to require a reference to authorities, and are fully sustained by the cases referred to in the appellants’ brief. And they necessarily dispose of the [336] first branch of the plaintiff’s case, unless our statute, — which authorizes a plaintiff, at his option, to include in one action all persons severally liable upon the same obligation or instrument, including the parties to bills of exchange or promissory notes, and sureties on the same, {Com. Stat., 535, see. 36,) — changes the law as to this State. We cannot believe, however, that any such change was intended. The Legislature sought by the provision referred to, merely to avoid afmul-tiplicity of actions, but never intended thereby to put it in the power of the holders of such instruments to change or in any way affect the legal or equitable rights of the persons liable thereon, in their relations or responsibilities to each other, by any course or form of action they might pursue. The holder of the note, on which the judgment referred to in the pleadings in this case was rendered, might, notwithstanding this statute, have obtained separate judgments against both makers and indorser, in which event, as we have before stated, Folsom, the indorser, might have paid the judgment against himself, taken an assignment of the judgment against the makers, and enforced the latter to reimburse himself. And should he now be deprived of this right as against the makers who are liable over to him, and be driven to the trouble and expense of another action, simply because the holder of the note saw proper to proceed under the statute, and obtain a judgment against both makers and indorser in one action ? The indorser has, in this case, paid the judgment and taken an assignment to a third person, who enforced it against the makers. This he had a perfect right to do, even without the intervention of a third person as assignee. He might have taken the assignment directly to himself. But the plaintiff further claims that the execution after-wards issued to enforce this judgment, was never, in fact, levied upon the real estate in controversy. To this the defendants answer, that the Sheriff returned generally that he had “ levied upon the property — that such general return is suf-ficiet, and its truth or falsity cannot be enquired into in this action. This Court held in Tullis vs. Brawley, 3 Min., 277, and Rohrer vs. Terrill, 4 Min., 407, that a Sheriff was not re [337] quired to state in Ms return tbe particular facts constituting a levy ; that a general return that he had “ levied upon ” property was sufficient, and could not be disputed, except in a direct proceeding against the officer, or his sureties, for a false return; and in the former case we also held that where a judgment was a lien upon real property, a formal levy upon such property was not required, and that the provision of statute, that “ until a levy property is not affected by the execution ” applies to a levy upon personal property only. These decisions fully dispose of the second branch of the Plaintiff’s case, leaving only the question as to the lien of the judgment upon the homestead of the judgment debtors. The real estate in controversy at the time the judgment above spoken of was rendered and docketed, was occupied by one of the judgment debtors as a homestead, and had been set off to him as such. It was "afterwards conveyed to the plaintiff in this action, but before the levy and sale mentioned in the pleadings. It is now urgedjthat because the property was, as a homestead, exempt from sale in the hands of the judgment debtor, it remained so exempt in the hands of his grantee, and that the judgment was never a lien upon it. We cannot adopt this view of the case. The statute in forcé at the time made the judgment a lien from the time of docketing, on a all the real property of the judgment debtor in the county, owned by him at the time or afterwards acquired.” (Com. Stat., 566, sec, 76-7.) And although by another provision of the statute, (Rev. Statutes of 1851, p. 363, sec. 93,) the homestead owned and occupied by the debtor as 'a residence, was exempted from sale on execution, yet it does not appear to affect the lien? of the judgment given by the sections before referred to. This exemption from sale was continued even after the death of the judgment debtor so long as the premises were occupied as a homestead by the widow, (she continuing unmarried,) and until the youngest child attained its majority, or some one of them continuing to occupy the same as a homestead. It will be observed, however, that the statute, without mentioning the lien of the judgment, merely suspended the sale of the homestead so long as it was occupied as such by the debtor, his widow or minor [338] children; but the inference is clear, from the language used, that so soon as it ceased to be thus occupied — when the debtor, his widow or minor children abandoned it as a residence, or if the widow married again, and the children all attained full age, the exemption ceased, and the lien of the judgment could be enforced by a sale on execution. Occupancy as a residence, by some one or more of the persons named, is made a condition for the continuance of the exemption, and the exemption was but a personal privilege, - which the parties for whose benefit it was intended, might lose by abandonment. We hold that, under the exemption law, as it existed at the time this judgment was rendered and docketed, and the property sold, the lien of the judgment attached to the homestead as well as to any other real property of the judgment debtor— that the exemption of the homestead was only an exemption from sale on execution, while occupied by the debtor or his family, but did not affect the lien of the judgment. That when McKusic, the judgment debtor, abandoned the property as a residence, and conveyed it to another, the exemption ceased, and the judgment creditor had then the right to enforce his lien by a sale of the premises on execution, and that the grantee, Oarli, took the property, subject to the lien of the judgment. It would seem also that the Legislature has given a similar construction to this law by the act of March 10, 1860 ; for in providing that a judgment debtor may now remove from, or sell the homestead, without subjecting it thereby to a sale on execution, it was found necessary to deprive judgments of any lien upon the homestead. The point which the Plaintiff makes as to the verification of the answer, we consideras waived by receiving and retaining that pleading without objection. But giving the objection full force, it would not avail the Plaintiff in this action, for under the view we have taken of the^ case, he would not be entitled to a judgment had his whole case been admitted by the answer. Judgment reversed.