Goss v. Mather ( 1870 )

By the Court

Daniels, J.

When the plaintiff brought his action against Thing to recover bach the $400 paid him, he must have done so upon the legal theory that the settlement and satisfaction of the judgment by the defendant, who was the party primarily liable for its payment, had the effect of seeming to him the right to rescind and annul the sale of his land under the execution, and entitled him to an assignment of the certificate from Horton, without availing himself of the privilege provided for him by the agreement extending his right of redemption. If he was right in assuming that to be the relation existing between himself and Thing, as this court has decided he was, then he at that time had the privilege of rescinding the sale made by the sheriff, or if he did not elect to avail himself of that to treat the judgment as satisfied by means of it, and bring his action against the defendant as the primary debtor, for the recovery of the amount paid upon the debt by the sale. The latter remedy depended upon the affirmance of the sale itself, while the former was equally dependent upon the affirmance of the settlement made between the defendant and Thing, and the disaffirmance of the sale made under the execution. These remedies were so inconsistent that the election of one necessarily involved the exclusion of the other. By proceeding against Thing for the purpose of annulling the sale, the right of the plaintiff to succeed was dependent upon the fact that the judgment had been satisfied and discharged by the settlement and satisfaction made by the defendant. Without that, Thing was clearly entitled to retain the land sold upon the sale made under the execution, for the plaintiff’s property had become legally bound for the payment of the judgment. It was only by force of that settlement and satisfaction by the defendant, as the primary debtor, that the plaintiff as a party secondarily liable, was placed in a situation in which he could require his land to be discharged from the sale.. That circumstance entitled him to that relief in case he elected to avail himself of it. At the time when that privilege was secured to him he was ignorant of it; the settlement and satisfaction having been made without his knowledge. He accordingly proceeded under the sale so far as to pay the amount required by Thing to discharge his demands as the beneficial purchaser of the property. When that was done the certificate of sale was transferred to Melrose for his benefit, which in effect annulled the sale itself, and left the plaintiff at liberty when he discovered that Thing had received satisfaction of the judgment from the defendant either to proceed against him for reimbursement, or against Thing for the recovery of the money paid upon the assignment of the certificate. The plaintiff elected to pursue the latter remedy when the facts were ascertained by him. And by means of it recovered a judgment sufficient in amount to reimburse him if the estate of the defendant in the case had proved to be sufficient for its payment. That it did not,- was not the fault of the defendant in the present case. After proceeding so far upon the assumption that the defendant had satisfied the judgment, it is now too late for him to assent that he satisfied it himself, and has therefore the right to .recover the amount paid, from the defendant as the primary debtor. The plaintiff’s remedy against Thing for the recovery of the money paid him involved the necessity of totally disaffirming, the right of Thing to apply or retain it as a payment. When that was done the plaintiff entirely divested himself of all remedy against the defendant. For the remedy against the latter was dependent upon the fact that the plaintiff had been compelled to pay his debt. This could not be true after the payment made had been annuEed by the act of the plaintiff himself, as it was by the recovery of his judgment. The plaintiff made his election between two inconsistent remedies, and his failure to secure satisfaction by means of the one which lie adopted, forms no legal reason for permitting him to now resort to. the other. The judgment at the circuit was right, and it should be affirmed with costs.

Marvin and Talcott, JJ., concurring.

Judgment affirmed.