Williams v. Gallien

Martin, J. The defendant is appellant from a judgment homo-logating the sale of a tract of land of his, adjudicated by the sheriff to the plaintiff. The homologation, on the monition, was resisted on the ground of gross misconduct in the sheriff, who proceeded to the sale of the property levied on, after the defendant had paid the amount of the judgment to the plaintiff in the execution, notwithstanding the repeated directions of the attorney of said plaintiff to forbear to sell the property, and ordering the execution to he returned. The defendant supported his allegation by the testimony of Sherburne, the attorney of the plaintiff in the execution. This gentleman deposed that he received from the present defendant, then also the defendant in the execution, a draft, and agreed that all proceedings on the fieri facias should he suspended until it could he. known whether the draft would he accepted ; and that afterwards on learning that the draft had been accepted, he directed the sheriff to return the execution; that the draft was a satisfaction of principal and interest of judgment, and that he considered it as settled ; that the sale was made without his knowledge, and that he ordered the.sheriff several times before the sale, and once upon [95] seeing the advertisement of sale, to return the execution, and not sell the land.- The draft was given him by Gallien, then, and now defendant, ^ne month before the sale, which was postponed several times. The costs of suit were not included in the draft. On the part of the plaintiff and appellee, it is urged that the sheriff correctly proceeded to the sale under the execution, because the judgment was not entirely satisfied, the draft not being sufficient to cover the whole judgment, as after its payment the costs remained unsatisfied; that the purchaser at the sheriff’s sale cannot be affected by the neglect of the sheriff to attend to the direction of the plaintiff’s attorney, whose instructions to the sheriff were not known to the defendant; and that plaintiff had no right to prevent the sale of properly seized, so as to deprive the officers of the court of the means'of collecting their fees. It appears to us the district court erred. It is true, that if a defendant against whom judgment be obtained does not procure a suspensive appeal, and the judgment is afterwards reversed, the purchaser of his property on a sale under execution, before the reversal of the judgment, will be maintained in his purchase ; but it does not follow from thence, that the sale of a defendant’s property, after he has satisfied the judgment, would avail the purchaser. The whole judgment, including the costs, is the property of the plaintiff, who we suppose to have advanced them, or who is chargeable therewith ; the judgment being,that he recover his debt and costs. Code of Pr., art. 548, et seq. The testimony of Sherburne is uncontradicted, and leaves no doubt of his having given repeated instructions to the sheriff to forbear selling-the defendant’s property, even after he had seen the sheriff’s advertisement for the sale. The plaintiff purchased for seventy dollars six hundred and forty acres of land, which are alleged to be worth several thousand dollars, and were appraised at fifteen thousand, giving a twelve month’s bond. Pierson, for the plaintiff. Taylor and Dunn, for the appellant. It is therefore ordered that the judgment of the district court be reversed, and that the sale of the defendant’s property by the sheriff to the plaintiff be set aside and annulled, ’ and that the latter pay costs in both courts.