Nichols v. Dissler

The opinion of a majority of the court was delivered by Green, C. On the trial of the cause in the court below, the defendant showed title to the premises in question under a deed from auditors in attachment, bearing date on the first day of July, 1841, and through sundry mesne conveyances to himself. The auditors’ deed was made under a judgment in attachment, entered in the Passaic Common Pleas on the sixth of February, 1838, in favor of Farrand S. Stranahan v. Nichols, the plaintiff in this suit. The order for the sale of the land attached was made at July term, 1838. The judgment remained unsatisfied of record, and the order for sale unrevoked and in full force at the time of the creditors’ sale. To defeat the title thus established, the plaintiff offered in evidence the record of a judgment recovered in the Common Pleas of the city, of New York, by Stranahan v. Nichols, on the twenty-fifth of April, 1840, and a paper purporting to be a satisfaction piece of that judgment. He then offered parol evidence to show that the judgment recovered in New — 463 — York was for the same debt with that recovered in New Jersey, arid that the costs on the judgment in this state were paid before satisfaction was entered upon the judgment in Yew York. The evidence was overruled, and the judge instructed the jury that the evidence thus offered to show that the judgment in attachment was inoperative and void, was incompetent for that purpose, and that they must consider the judgment, at the time of the sale by the auditors, as an existing unsatisfied judgment. To this charge the counsel of the plaintiff excepted, on the ground that the evidence ■offered was lawful and sufficient to establish the fact that at and before the time of the auditor’s sale the judgment under which they sold was satisfied, and from the time of such satisfaction the judgment and all proceedings under the same were wholly inoperative and void. The question is thus distinctly presented, whether the title of a bona fide purchaser for value under a judicial sale, the judgment and order for sale remaining in full force and unsatisfied of record, can be defeated by parol proof of a payment of the debt by tbe defendant in execution to the plaintiff before the sale. There is no intimation or suggestion of fraud in the procurement of the sale, either in the record before us or by counsel at the trial or upon the argument before this court. At the common law, parol evidence, even as between the parties to the judgment, was inadmissible to prove satisfaction of a judgment. The remedy of a defendant against whom a judgment had been rendered, and who had any good matter of discharge since the judgment, was by a writ of audita querela, which was in the nature of a bill in equity to be relieved against the oppression of the plaintiff. And the cases where this mode of relief was applicable, as stated by Blackstone, is where the plaintiff hath given a general release, or where the defendant hath paid the debt to the plaintiff without procuring satisfaction to be entered on the record. 3 Bla. Com. 405. The form of this writ is disused. The modern practice is — 464 — not to put the defendant to the expense and trouble of the-writ of audita querela, but to grant relief upon summary motion. But the relief granted is the same. Satisfaction of’ the judgment will be entered upon motion, upon proof of' the payment of the judgment. So strict is the common law rule against destroying the-effect of a record by parol, that in an action upon the record the defendant could not plead payment, because such payment was matter in pais, and not of record. As applied to-parties and privies to the judgment, that rule has been altered by statute. But the common law rule is unquestioned, and remains in full force as to all others than parties or privies. At common law, where a judgment has been rendered, the-defendant may discharge the debt by paying the debt to the-sheriff before the return day of the execution, and the return of the officer, which he is bound to make, will show the fact of payment and the discharge of the debt. So upon a writ of fieri facias, if the sheriff levy upon property of the defendant sufficient to satisfy the debt, the levy is itself satisfaction of the debt, although the sheriff should misappropriate or waste the property, unless, indeed, it should be restored to the defendant. In such case the plaintiff must look to the sheriff for his satisfaction. If the amount is neither levied upon the defendant’s property nor paid to the sheriff, the defendant is at liberty to settle with the plaintiff, upon such terms as he sees fit. It may be done by payment, by accord and satisfaction, or the plaintiff may forgive the debt and release it. As between themselves such arrangement will be valid, but they cannot thus wipe out a record to the prejudice of other parties. In such case the parties,' or either of them, may apply to the court and have satisfaction entered, and when that is done the record is discharged, and not before. The statute of this state has made full and wise provision upon this subject for the protection of the defendant. Nix. Dig. 407.* — 465 — At the common law the defendant, upon motion in court, may have satisfaction entered. The statute goes further. It authorizes the plaintiff or his attorney, as of his own motion, to enter satisfaction without the authority of the court. It prescribes the mode and form in which it shall be done, either personally or by power of attorney. It makes it the duty of the plaintiff, upon the request of the defendant, to enter satisfaction. The court will order it to be done at the defendant’s request, and at the cost of the party who has received satisfaction. And if either party is dead, the statute extends the same remedy to the survivors or their representatives. Thus carefully and jealously did the common law guard the sanctity of a record, and the rights of parties acquired under it, and thus carefully has our statute provided for the protection of all the just rights of the defendant. But it is now claimed, and certainly for the first time successfully in this state, ihat the mere payment of the debt, or a release given by the plaintiff to the defendant, is ipso facto ,a satisfaction and discharge of the record, and an abrogation of the power of the court, although the judgment and the order for sale remain upon the record unsatisfied and in full force. And thus offer is made by the defendant in the execution to cancel the record, by the verbal proof of himself and his attorney of a settlement between the parties in New York, and the satisfaction of a judgment more than nineteen years after the transaction occurred, for the defeat of the title of a bona fide purchaser for valuable consideration without notice, upon the faith of that record more than nineteen years ago. In my judgment, the rules of law and the sound dictates of public policy alike forbid it. There is no authority in this state to sustain the claim. Neither the case of Simmons v. Vandegrift, Saxton 136, nor of Den v. Downam, properly considered, affords any support. The case in Simmons v. Vandegrift was a bill in equity, by a purchaser under an execution, for relief against a title .fraudulently obtained under cover of a former judgment. — 466 — The complainant (in the language of the Chancellor) put himself before the court upon the broad ground, that the judgments under which the sheriff sold were paid and satisfied ; that this was known to the purchaser and sheriff) and that they effected the sale fraudulently to injure the complainant’s title. And in reference to this state of facts, and to the claim made by the complainant, the language of the Chancellor must be interpreted. It is undoubtedly true that if a prior judgment is satisfied, it cannot be used by the defendant as a cloak for fraud, to defeat the claims of subsequent purchasers. And if a purchaser is a party to the fraud, and takes title with knowledge of it, he will not be relieved in equity. In Den v. Downam & Cambloss, 1 Green 138, Judge-Ford, in his charge to the jury, said: “ To make payment an absolute discharge of an execution, it ought in regularity to be entered upon record, in satisfaction and discharge of the judgment. It then operates as a discharge to all the-world. It may indeed affect all parties and privies to a payment without being entered on record, but not strangers and innocent third persons, who purchase at public sales and pay the money bona fide.” Upon a motion for new trial the verdict was sustained, although exception was taken to the-charge. It was not indeed held that the charge in this particular was correct. The argument proceeded and the case was decided upon other grounds. The case cannot be regarded as a direct authority in support of the principle contended for. In both these cases the payments were made-not to the plaintiff in execution, but to the sheriff himself,, and in one of them the sheriff was charged as a parly to the fraud. They do not sustain the legal doctrine that a payment to-the plaintiff is a satisfaction, which renders the judgment inoperative and void. The doctrine is, that the judgment is technically satisfied by a payment to the plaintiff. The power of sale is extinguished, and the execution, it is said, is funotus officio. That — 467 — places sheriffs, auditors in attachment, and all officers having the executions of writs in a remarkable dilemma. There was of record a judgment unsatisfied, and an order of the court that they should sell this land. If they refused to sell, they were punishable by fine and imprisonment; and if they made sale, their title is worthless. If a sheriff having a oa. set. against the defendant arrests him, and the defendant says, I have paid the debt; if he takes the defendant’s word and discharges him, and it turns out that the debt is not paid, the sheriff is guilty of an escape, and is liable for the debt. If he refuses to discharge him and the debt is paid, he is guilty of false imprisonment. Or if the sheriff under a ji. fa. and levy, is told that the debt is paid, he may be shown a receipt; the receipt may be a forgery. The sheriff is doubtless bound to give the defendant an opportunity to show payment and have satisfaction made. If he refuse to proceed, the court will amerce him in the whole amount of the debt aud costs. If he does proceed, the defendant will sue him as a trespasser ; and if he sells the real estate, the title will be worthless. It is attempted to escape this dilemma by saying that the process may justify the officer, though it will pass no title to the land sold under it. But how can an extinguished power justify any act done under color of its authority? Voidable or irregular process may be relied on by way of justification. And if the judgment, though satisfied, can be regarded as operative, so far as to justify the officer, why may it not be equally operative to support the title of a bona fide purchaser without notice? The judgment should be affirmed. Footnotes [*] Rev., p. 523.