Pitts v. Magie

Catón, C. J. We think the court should have set aside these judgments, and allowed Pitts to set up the defense proposed in his affidavit. There is no question that the defense, if established before a jury, would be a good one, and the only question is, whether such a case was presented by the affidavits read on both sides, as should be submitted to the decision of a jury. The affidavits presented in support of the motions, are positive and unequivocal to the fact of the extension of the time of payment by the agent of the holders of the notes, and without the consent or knowledge of the surety. The affidavits on the other side, are in some respects contradictory of those, and in others explanatory, but on the whole they leave such an impression on our minds, as to convince us that those questions of fact should be inquired of and determined by a jury, where all the witnesses may be cross-examined. A remark may not be improper as to the complaint of the levy by the sheriff upon the personal property of the defendant, while he had real estate which it was his duty first to levy upon. It is the right of the judgment debtor under our statute, to turn out real estate upon an execution against him, before his personal property is taken, and the sheriff who seizes his personal property, without giving him an opportunity to turn out realty when that is practicable, exceeds the line of his duty, and the court will set aside such a levy, upon a proper application made by the debtor, showing that he has real estate subject to the execution. Such an application should specify the property, give an abstract of the title, and show its value, with the incumbrances upon it, if any. Upon a proper showing, on such an application, the court would not hesitate to set aside the levy upon the personal property and direct the levy upon the realty, so as to fairly give to the debtor the benefit of the provisions of the statute. It will sternly rebuke the conduct of the officer who conceals from the debtor, the existence of the execution in his hands, for the purpose of preventing him from turning out real estate till he can seize his personal property. Indeed it is the first duty of an officer having an execution against a party, to apply to him personally for payment, wherever that is practicable, and the officer should be held responsible to the party aggrieved, for a neglect of this duty, wherever special damages result from it. These judgments are reversed, and the causes remanded. Judgments reversed.