Done Bros. v. Taussig , 117 Ill. 330 ( 1886 )

Mr. Justice Scholfield

delivered the opinion of the Court:

We find no reason to -disagree with the Appellate Court in its conclusions as to the law on these facts, as announced in its opinion filed on affirming the judgment of the circuit court. Donk Bros, et al. v. St. Louis Glucose and Grape Sugar Co. 17 Bradw. 374.

But counsel for appellants contend that the fact that appellants did not purchase the perishable property sold under the Donk judgment, renders the reasoning in the opinion of the Appellate Court inapplicable to the case before the court. This seems to assume that the Donk attachment, and the sale of the perishable property under it, are independent of the Alexander & Taussig attachment, and of the levy of both attachments upon other property which appellants did purchase, which is, very clearly, not admissible. The sale of the perishable property before judgment was obtained, was merely to prevent loss. (Attachment act, 1 Starr & Curtiss, sec. 20, p. 318.) So far as any question involved here is concerned, the case may be considered just as if that and all the other property attached had remained in the hands of the sheriff until the -final sale by him of all the property attached, under both attachments, for since both attachments were returnable at the same term, they would share in the property attached pro rata, (see. 37, Attachment act, supra,) and this applies as well to the proceeds of the perishable property as to the other property. Neither attachment was entitled to priority over the other in respect to any of the property attached, and each was a lien upon all of the property attached, to the extent of the entire amount of the indebtedness for which it was issued. And hence, when the appellant company, after it became the owner, subject to these attachments, of .all the property attached except that which had been sold as perishable, purchased and became the assignee of the Donk judgment, it occupied, to the extent of the amount of that judgment, the position of both debtor and creditor, and in such cases there is a merger of the qualities of debtor and creditor, extinguishing both. Abbott, in his Law Dictionary, vol. 2, title, “Merger, ” says: “Merger is the equivalent of confusion in the Roman law,'and- (when used with reference to demands,) indicates that where the qualities of debtor and creditor become united in the same individual, there arises a confusion of rights which extinguishes both qualities; whence, also, merger is often called extinguishment. ” Bouvier, in his Dictionary, vol. 2, title, “Merger, ” under the head of “Rights, ” says: “Rights are said to be merged when the same person who is bound to pay is also entitled to receive. This is-more properly called a confusion of rights, or extinguishment. When there is a confusion of rights, and the debtor and- creditor become the same person, there can be no right to put in execution.” The same rule is recognized in Pomeroy’s Equity, vol. 2, secs. 789, 790.. The extinguishment is complete at law, though in equity, under certain circumstances, a merger or extinguishment will be prevented. (Ibid.) The assignments of the judgment invested the assignees, in the order of the assignments, successively, with the right to receive the .amount to which the plaintiff in the judgment was before entitled, and a court of law recognizes and enforces the rights of such assignees. Chapman v. Shattuck, 3 Gilm. 49; Carr v. Waugh, 28 Ill. 418; Morris, Admr. et al. v. Cheney, 51 id. 451; Hodson et al. v. McConnel, 12 id. 170.

No right, therefore, recognized by a ,court of law, remained, in Donk Bros, after the assignment, and there was nothing to prevent ¡the legal merger or extinguishment.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.