Crow v. Hudson , 21 Ala. 560 ( 1852 )

GOLDTHWAITE, J.

— -The only question in this case is, whether, on the trial' below, the return of the sheriff of the amount brought by the sale of the cotton levied on, was conclusive evidence of that fact, as to the plaintiff in error. Giving to the return the force of a record, the rule is, that it would bind only parties and privies. The plaintiff in error was not a party to the proceeding; and it is only necessary, therefore, to determine whether he was a privy, within the meaning and operation of the rule.

Privity denotes mutual or successive relationship to the same rights, 1 Green. Ev. § 523; and, as to the defendant in the original suit, who was the maker of the note, in any judgment or proceeding in such suit, the interest of the plaintiff in error would have been identical with that of the party to whom the transfer of the note was made; and for that reason, the maker of the note could regard him as a privjr in such proceeding. But, as to the plaintiff in such suit, he does not occupy the same position, and, so far as he is concerned, is not to be regarded as a privy. Their identity of interest is confined to the proceeding against the maker of the note. A party is not allowed to build up an estoppel in his own favor; and an assignor is not bound, in a suit against him by the assignee, bj^ a judgment in favor of the maker, ascertaining the fact of payment previous to the assignment, unless the assignor had due notice of the first action, and an opportunity to defend it. Maupin v. Compton, 3 Bibb’s R. 214.

Upon analogous principles, the plaintiff in error was not bound by the return of the sheriff, on the execution issued on tbe judgment in favor of tbe defendant in error against the maker of the note, St. John v. O’Connell, 7 Porter, 476; and the charge of the court, that such return was conclusive, was erroneous.

Por this error, the judgment is reversed, and the cause remanded.