Bibb v. Jones , 8 Miss. 397 ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

In our view, the facts do not raise the question of priority of judgment lien ; the circumstances narrow it down to a more special enquiry. The point of controversy turns upon the character of a levy made under the execution of the defendant Jones on the 27th,of May, 1840, and out of the levy under which the money in dispute was made; both parties having executions against the same defendants. Bibb’s judgment was the oldest.

On the execution of Jones, issued from the April term 1840, is the following return. “ Received the 27th of May, 1840, levied this and other fi. fas. against W. D. Amis, to make the sheriff’s fees, on six slaves, (naming them) and advertised the same for sale on the sixth of October, 1840; no more property found.” It is not shown what disposition was made of the slaves so levied on. Another execution, the same under which the money was made, was issued, and it is insisted that this last execution was void, because the former one had been satisfied by the levy. We are not prepared to say that this would be the consequence, even if the levy had been made on property sufficient to satisfy the execution. This would create a'presumptive satisfaction, which would however be subject to explanation, by proof that actual satisfaction had not been obtained. The subsequent execution after such levy might be quashed, but if the defendant takes no step for that purpose, and permits a sale to be made under it, an innocent purchaser obtains a good title. 3 How. 69; Saunders v. Caldwell, 1 Cowen, 643. This would not be the case, if it were void, for then the officer and all others acting under it would be trespassers.

But in this case not even a presumption of satisfaction is afford-' ed. The retan is, that the levy was made under that and other fi. fas., to make the sheriff’s fees. Why a levy was made of such limited character we are not informed; but it would be to go far beyond what the record warrants, to hold this to' be a presumption of satisfaction of the principal and interest of the execution.

This point disposed of, we are led to the consideration of the two executions which were in the hands of the sheriff, when the money was made which gave rise to the controversy. The levy upon the execution of Jones is as follows ; “levied thisyi. fa. on one negro woman named Grace, advertised and sold the same according to law, on the 5th day of April, 1841, for three hundred and eighty-five dollars, money brought into court to be applied, it having been claimed by plaintiff in y?, fa. 2592: no more property of defendants.” The fi. fa. mentioned in this return was that of Bibb; which was returned with the following indorsement: “Levied this fi. fa. on one negro woman Ausine and child, as the property of W. D. Amis, advertised and sold the same on Monday the 4th day of January, 1841, for five hundred and fifty dollars; five hundred and thirty-seven dollars paid plaintiff, balance detained for cost. Levied on a negro woman named Grace, under an execution No. 3215 of James Jones against Amis, advertised and sold the same on Monday the 5th of April, 1841, for three hundred and eighty-five dollars, money claimed by plaintiff in this execution, brought into court to be applied.” The evidence of John K. Otey, a deputy sheriff, is contained in the bill of exceptions, but does not seem to vary the rights of the parties growing out of the above state of facts.

The latter part of the return above set out, on the execution of Bibb, is by no means perspicuous, but taken in connection with the return on the execution of Jones, we come to the conclusion that the execution of Bibb was not levied on the negro woman Grace, but that the money was claimed because of priority of judgment lien. The words “levied under an execution of Jones, and money brought into court, &c,” according to our understanding, imply that the levy was made under the execution of Jones, but that the owner of Bibb’s execution claimed the money. Under this state of facts there can be no doubt as to the decision. According to the decisions of this court, no creditor in a contest as to the application of money made under execution, can successfully claim it, but one whose execution was actually levied upon the property out of the sale of which the money was made. A levy and sale upon an execution under a junior judgment do no prejudice to the elder judgment creditor, the property sold remains in the same degree liable to his execution as before the sale. Hence he has no claim to the money made under an execution not his own.

The judgment is therefore affirmed.