Mills v. Williams , 2 Stew. & P. 390 ( 1832 )

Lipscomb, C. J.

Vbc; tvn”, a. motion against the Siionif, íb<. pinn .'.ic'n: c¡ r--r, to compel him to apply money, io the benefit oi the plnui'iilfs below, made, under the following oircum.stane.Cs: Charles Williams sued one William Housou, in the county court of Madison county and obtained judgment against'him, on which an execution issued and was levied on a negro girl, named Belinda. The girl was.claimed by'Asa and William Hodges, the plaintiff's below, as executors of their father’s estate, and bonds,given by' them, according to the act of 1812, to Sheriff for such damages as should be assessed, and to the plaintiff for the delivery of the property, if it should be found suhject to the execution levied on it. A trial of the right of property was had, at the November term, 1S29, of the circuit court of Madison county, and the property was found subject to the execution which had been levied on it. An execution was sued out, returnable to' the succeeding May term, which was returned nulla Iona. There was a failure to deliver the girl levied, arid the bond was returned forfeited; and on motion, judgment was rendered against Bra-lian, the security in the forthcoming bond, and execution sued out: the Hodges then paid the amount of the execution against Brahan, their security. In September, 1829, an execution issued from the Cir-. cuit court of Madison county, in the name of Murphy & Erwin, against one Ryley, and the said William' Houson, and was levied on the same girl, Belinda, .as the property of Houson. The Sheriff returned that ha had levied on the girl, but hacj. not sold her, because she had been claimed on the previous levy, and the right of property not yet tried : an alias was sued out and levied again on the same girl, in May, 1830, subsequently to the trial of the right of property. An execution was sued on another judgment in favor of Williams, obtained in the Circuit court of Madison county against Houson, and levied on the same girl two days before the alias execution of Murphy and Erwin had been levied.

At the time the two last executions were- levied, the Hodges had paid only a part of the amount of the execution against Brahan, their security in the forthcoming bond: under these circumstances they procured the issuance of an execution on Williams’ county court judgment, (the same on which the execution that had been first levied on the girl Belinda, when she was claimed by them as the property of the estate of their father,) for their benefit, and had it levied on the girl, and then paid the (balance of the execution against their security, Brahan. The slave was .subsequently sold under all three of the executions, and the Sheriff not knowing which had a right of preference, a rule was entered against him, and the court directed the money proceeding from-the sale, to be applied to the benefit of the Hodges, to the amount of the execution they had paid against Rrahan.

It is contended that, notwithstanding the proceedings had on the first levy, the trial of the right of property, and the payment of the amount of the execution on the forfeited forthcoming bond, by the Hodges, the slave was subject to the execution sued out by Murphy and Erwin; that by paying the amount of the execution, the Hodges acquired no,lien; that the execution .from the. county court for their benefit was void, because'it issued on a judgment that had been merged in the judgment of condemnation in the circuit court and satisfied by the' proceedings there had.

By the act of 1812, when an execution has been levied on property claimed by another, the claimant is required to give bond to the sheriff, to pay such damages as may be assessed against him, if it should be found that the claim had.been merely interposed for delay : and another bond to the plaintiff in execution for the delivery of the property, if it should be found subject to the execution. On this being done the sheriff is required, to make a return of the bonds to the next ensuing term of the circuit court, when and where an issue is required to be made up under the direction of the court.

The execution was suspended in its operation on the property levied on, but it lost not the lien acquired. It was not superseded,r and might at the same, or any other time have been levied on other property for satisfaction. „ In the circuit court, in the event of a condemnation of the property there could have been but two judgments, one for the damages, if any should be assessed, and tbe other for the amount of the execution on the delivery bond, if it should be forfeited by the claimant failing to have the property forthcoming. But it seems clear, that one or both of these judgments would not affect the original judgment on which the execution had issued, because the execution may have acquired other liens, and may have been satisfied in whole or in part from other property, and in -such an event, the plaintiff in execution, would have been entitled to no more than his cost and damages, and the amount remaining unsatisfied, if any, on his execution.

The execution -could have run from the county court against all the property of the defendant until it was satisfied; there is no question, but when it ivas - levied first on the slave Belinda, .it acquired a claim to satisfaction as far as the proceeds of the sale of 'her would have went; this was prior to the lien of any other of the executions: a majority of the court believe that the lien then acquired, was not lost By the trial of the right of property. The judgment had not been satisfied, when the execution issued for the benefit of the Hodges and it might therefore well have run. But we believe if the judgment had been fully satisfied by the Hodges before the issuance of the execution, that by so doing the rights of the plaintiff in the judgment were subrogated to them, and entitled them to a preference, for the amount they had paid. We can not believe that the law would impose on them, the payment of the amount of the execution on the delivery bond, as a penalty, and taire away from them the privilege of ’ securities. That they .were acting in good faith, as representatives of their father’s estate, when they preferred their claim. is proved by the fact, that no damages were assessed by the jury on condemning the property levied on. The courts of law will always, when it is in their power, protect the equitable lien of a party in the appropriation of a fund in their hands. And in this case, had there been a defect of a legal right to the money, the equitable right of the Hodges would have prevailed. But we believe that they had both the legal and equitable right, and consequently that there is no error in the judgment.