Moore v. Barclay , 16 Ala. 158 ( 1849 )

COLLIER, C. J.

The bill certainly states a case of which a court of chancery may take jurisdiction. It alleges a contract between the complainant and Barclay in positive terms under ivhich the former confessed the judgment, and avers that it has been violated by Barclay, in causing an execution to be issued on that judgment though Spence was not called on for payment by any of the creditors whose executions were entitled to the proceeds of the land which Barclay bid off. The allegations of the bill are explicit, that the quit claim deed was executed to the complainant upon his assumption to pay Barclay a debt due him by W. H. Moore, and the confession of the judgment to be paid when the execution creditors who were entitled, should call on Spence for payment. It is alleged that the debt of W. H. M., has been assumed and the greater part of it paid: that no requisition has been made upon Spence, and none can be made, as the complainant is assig-nee of the Branch. Bank at Montgomery of the only judgment and execution now operative, which was in Ms hands at the time the land was sold.

It is supposed that these facts, even when coupled with the insolvency of Spence are insufficient to sustain the jurisdiction, but it should be also alleged that the sureties in the official bond of Spenee were insolvent, so that the complainant could not enforce the payment of the judgment of wMch he is assig-nee either by motion or suit against them. This argument we tMnk cannot be supported. The complainant seeks relief upon the ground that Ms contract with Barclay has been violated by the attempt to enforce a payment of the judgment in favor of the latter by execution. If the event has not occurred upon which an execution could rightly issue, the complainant must have some remedy, by wliich he can arrest it. Here, the objection does not embrace matter arising subsequent to the rendition of the judgment, but rests upon an agreement previously entered into, which induced its confession; and in addition to this, a perpetual injunction is prayed upon an allegation of facts showing Barclay should not be required to pay Spence, and if he does, the money may be immediately demanded by the complainant under the execution, of which he is assignee. In this view of the case, it is clear that the relief sought cannot be afforded by a supersedeas and a consequent motion to quash. Lockhart et al. v. McElroy, 4 Ala. Rep. 572. A court of equity is alone competent to furnish a com-, píete remedy by making a definitive adjustment of the rights of the parties, and to entitle the complainant to relief in this tribunal, it must in the posture of the case made by the bill be an immaterial inquiry whether Spence and sureties are able to respond to the demand which the complainant might immediately make, if he were to satisfy Barclay’s judgment. It is quite enough in resisting the enforcement of that judgment for him to stand upon his contract. ;

The discharge by Barclay of Spence from the payment of certain demands due upon their private dealings cannot be recognized as a satisfaction of the bid of the latter. If Spence returned the executions satisfied, upon proof of these facts, the court from which they issued would cause the return to be vacated. The mandate of a fieri facias requires the money to be made, and it is not complied with, if the officer to whom it is entrusted receives demands against himself in payment. Cook & Lamkin v. Bloodgood, 7 Ala. Rep. 683. If then, the allegation of the bill upon this point be true, Barclay can claim nothing from the settlement he made with Spence, and the event upon which he can enforce Ms judgment against the complainant not having happened, Ms execution should be enjoined.

It would operate great injustice to the securities of Spence, if Barclay should be allowed to satisfy his purchase of the land in the manner alleged in the bill, and thus malve them liable to the complainant. Indeed it may well be questioned whether they are obliged to acquiesce in such an adjustment, or whether they could not coerce a paymenf.in money from Barclay, if necessary to their own protection. But however this may be, the complainant we have seen may still treat the matter as open between Barclay and Spence,

Thus far we have considered the case upon the bill alone, we will now enquire whether its essential equity is denied by the answer of Barclay. This defendant denies that the judgment was confessed “ upon the distinct agreement” that no money should be paid, or execution issue and be levied thereon, unless he should be compelled to pay the amount which he bid at the sale by Spence to some of the creditors of W. H. M., whose executions were in his (Spence’) hands. He does not know that the complainant is the assignee or proprietor of any judgment or lien which the Branch Bank at Montgomery may have owned, and therefore calls for proof of the bill on this point. It is admitted however, that the defendant did not pay Spence the amount of his bid for the land until several years after the complainant’s purchase, and the payment was not made in money, but as follows: In the fall of 1846, a judgment was rendered in favor of Tomkies against Spence and Barclay as his surety,- for nine hundred ninety-nine dollars and eighteen and three-fourth cents including costs, founded on a note given by the former as principal, and the latter as his surety. By agreement between Spence and Barclay, the latter satisfies Tomkies’ judgment, and discharges Spence from the payment of eertain sums which he was owing him, Barclay, and his partner, all which amounted to a 'sum equal to that at which Barclay bid off the land at the sheriff’s sale, with interest thereon, and in consideration thereof Spence discharged Barclay from the payment of the purchase money for the landi

It is needless to enquire what would be the rights of the parties in a court of law, conceding as he must do upon a motion to dissolve the injunction the truth of the answer, so far as it negatives the allegations of the bill. In undertaking to execute to the complainant a quit claim deed to the land in the manner, and for the consideration expressed in his answer, Barclay impliedly affirmed, not only that he had bid it off and had the sheriff’s deed, but that he had paid for it so as to make his deed operative against W. H. M., and the parties whose executions were in the sheriff’s hands when the sale was made. The acceptance by the complainant of a deed for a part of the land after Barclay informed him that he had not paid Spence, but had promised to do so whenever required, did not relieve Barclay from making such payment, if he would make the contract obligatory upon the complainant, at least to the extent of money due to the sheriff. It may be that if a sheriff receive in payment of an execution a discharge from a debt owing by himself to the defendant, that the sheriff and his sureties are estopped from showing that it was not paid with money. But however this may be, the plaintiff is not bound to resort to his remedy against the sheriff and his sureties, but may move to vacate the return of satisfaction and have another execution issued and levied, or if its predecessor had been levied on property which had been thus sold and paid for, he could cause the execution to be levied and the property resold. If the law were not so, the plaintiff might lose his debt if the sheriff and his -sureties were insolvent. The execution is the sheriff’s warrant, it is in the nature of a special authority, and we have seen it requires him to make the sum collectable in money, and does not authorise him to receive something else as an equivalent; if he does so, his act is beyond the scope of his legitimate powers, and may be avoided at the election of the plaintiff in execution.

The allegation that the complainant is the assignee of a judgment and execution which entitles him to the money which Barclay should pay Spence in order to consúmate his purchase, is not denied, so as'to authorise the conclusion upon the motion to dissolve the injunction, that it is untrue. If then Ave look to the contract alone, Barclay should not be allowed to enforce his judgment, because he has not perfected his purchase so as to acquire any title. This we said he Avas bound to do by the payment of the sum at which he bid off the land. The assignment under which the complainant claims, makes him in equity a creditor by judgment and execution, and entitled to all the privileges and advantages which one thus situated may exercise. We have seen that it AArould be competent for him to move to vacate the sale to Barclay, because no such payment has been made as the la\v recognizes. If he could do this, why should he be compelled to pay Barclay the confessed judgment when he Avill not thereby perfect his title. Having notice of the manner in Avhich Spence was paid, if all creditors were out of the way, could not W. H. M., object to the validity of the sale by the sheriff, and even assert his title against the complainant. Again: supposing the complainant should pay Barclay, he could not re-sell the land under liis execution, without losing the land, or what he had thus paid. And if Spence and his sureties were insolvent, would he not lose either the amount paid his execution, or the land, as W. H. M. could not be called on a second time to satisfy the execution. It may perhaps also be asked whether the sureties of the sheriff if they were required to satisfy the complainant’s executions have not equitable rights, which entitle them to be subrogated to all securities the complainant may make available, and if he Avere to yield up the right to enforce satisfaction from the land, could not the sureties in a court of chancery insist that they should be discharged pro tanto. These are questions, which the decision of the case as now presented, does not make it necessary to solve, yet they are suggested by the record, and may be wo thy of consideration in the progress of the cause.

Viewing the complainant as a creditor of W. H. M., by judgment and execution, which entitle him to the money that Spence should have collected of Barclay, as well as a purchaser from Barclay, and we are clearly of opinion, that the judgment against the complainant should not be enforced. We have stated the grounds upon which this conclusion is rested sufficiently to make ourselves understood. A court of equity is competent to consider the case as it may be deduced from the pleadings and make such a disposition of it as will effect complete justice according to law.

We have not thought it necessary to consider whether the notice of tire motion to dissolve the injunction should not have designated the place at which it would be made before the chancellor, or whether this court will regard an irregularity in the notice, on appeal from the order of dissolution as an available error. Be this as it may, we have seen that the injunction should not have been dissolved. But even if the act requiring a notice, is merely directory (a point upon which we express no opinion,) we incline to think that a correct practice requires that the notice should be so precise as to inform the complainant when and where the motion Avill be submitted.

We have not done more than merely look into the answer of Spence, as it had no influence upon the decision of the chancellor, there being exceptions to it which were undecided. But our impression is that it contains nothing, if the exceptions were disposed of, that would induce a result more favorable to the defendant. We however leave all questions which may arise upon it for future consideration. We have but to add, that the order dissolving the injunction is reversed, and the cause remanded.

Chilton, J., not sitting.