Hill Nall v. . Child , 14 N.C. 265 ( 1831 )

The foregoing facts were stated upon a motion to the county court, made by the plaintiffs, to issue another execution. But the motion was overruled, and the plaintiffs appealed.

His Honor, Swain, J., on the last circuit, affirmed the judgment of the county court, and the plaintiffs appealed to this Court. If the money raised upon the two executions is to be applied to each in proportion to the debt, that in which Samuel Child is a defendant is satisfied thereby, and by the payment of the sum of $715 afterwards made by him. The creditor contends that his execution against the two shall be first satisfied, so as to throw the whole unpaid balance upon the other.

No authority has been adduced in support of the position, nor do I perceive any principle on which to place it.

It is not the question, what the creditor might have done, or the sheriff. But the controversy is, What is the effect of what has been done by each of them? No doubt the creditor could have enforced the entire satisfaction of the small debt by withholding his larger (267) execution until that was done. And there is no doubt, also, that after both were delivered to the sheriff, that officer might have proceeded to satisfy the whole execution against the three out of the property of Samuel Child, and thereby left the estate of the other two open to the other writ. This, indeed, places a discretionary power in the sheriff's hands, according to the exercise of which the one debt will be wholly or partially satisfied. This is necessarily so, where the one writ is against one person, and the other against that person and another, for each defendant is liable for the whole. And it is a power which the party cannot control by directions. The officer is governed by the mandate and force of the writ. But the sheriff may first seize and sell, under both writs, the estate of him who is defendant in both. If he does, the estate of him who is defendant in but one is liable only for the balance due upon that execution, after the legal application of the money before raised. The question, then, is, What is a due application of that money?

If the two executions were at the suit of different plaintiffs (on which, by the way, the sheriff has the same discretionary power as that above mentioned), there is no doubt that each would be entitled to its share of the money. I can discover no difference, where there is the same plaintiff in both. The writs create certain well-known liens, and entitle the plaintiff, where there is conflicting process, to certain portions of the money raised upon the two jointly. If the sheriff seize only the estate of him who is defendant in both, and each has an equal line, and is entitled to a proportion of the fund, and sell that estate, the seizure and sale satisfy both writs pro tanto. If the sheriff thus apply the money, what complaint has the plaintiff? If they are different persons, manifestly none; for he whose execution is only against one gets his share ofhis debtor's estate. If there be the same plaintiff, he has as little, for the estate of him who is the debtor in both has been applied to each as the law directs, and the balance upon the execution against that defendant and another is satisfied out of the estate of the latter. (268) There could be no action against the sheriff for thus dividing the money raised on both, out of the effects of him against whom both run. But if directions from the party could control, there were none here; and the sheriff appropriated the money by his return. The subsequent act of the plaintiff, even with the sheriff's assent, could not alter it, because the writ was already satisfied pro tanto. It is true of debts generally that the creditor may apply the money, if the debtor does not direct a special application, to which of the two debts he chooses. But the very act of raising money on an execution is an application of it to that debt, according to the legal effect of the execution. I say raised on it because, as I have already remarked, the sheriff may, where an execution is against two, satisfy it out of the estate of either. But the creditor who has two debts can keep the control of both in his own hands only by holding up one of the executions. If he deliver both, he places it in the power of the sheriff to act upon both, against the property of him who is defendant in both, and the money levied on both is equally applicable to both; indeed, is applied in the very act of raising it.

PER CURIAM. Judgment affirmed.

Cited: Eason v. Petway, 18 N.C. 46.