Lytle v. Cincinnati Manufacturing Co. ( 1829 )

By the Court:

The assignees of Lytle and Avery, having purchased the real estate in controversy, upon an execution in their favor, regularly issued and levied, are entitled to retain the purchase money, and apply the saíne as a credit upon their judgment, unless some other subsisting, paramount claim is interposed.

The pretensions of the several applicants are to be considered.

First. It seems agreed by all parties that the judgment of Safer is entitled to priority; and may; therefore, be laid out of the question.

Second. The judgment of the Miami Exporting Company, being older than the judgment of Lytle and Avery, is entitled to a preference over the latter, unless that preference has been lost by the lapse of time, or laches of the party. It appears that the last execution issued by the Miami Exporting Company was on June 19, 1823, the sale upon which was sot aside at the August term following. The judgment, was revived on December 24,1829, more than five years from the date of the last execution, and from the time the sale thereon was set aside. The sale, which ^produced the moneys in controversy, was made on November 16, 1829; and the motion to distribute the moneys was made and granted on the same day, and more than one month before the judgment of the Miama Exporting Company was revived. So far, therefore, as the Miami Exporting Company are concerned, the only question is, whether a senior judgment creditor, who has issued no execution for more than five years, is entitled to moneys made by a sale upon a junior judgment.

By the common law, a plaintiff could not have execution upon a judgment after a year and a day passed; but he was put to his action of debt upon the judgment. 2 Inst. 469 ; Co. Lit. 290-296. But by St. W. 2, 13 Ed. I. 45, he might have a scire facias quare exeeutionein non, etc. If this statute was in force in this state, it is now abrogated by the statute, in which our legislature have undertaken to act upon the same subject matter; and they have, in effect, prevented the issuing of executions, either ft. fa. et lev. fa. or vendi., by declaring that after the expiration of five years it shall be lawful to maintain an action of debt, or sue out a scire facias upon judgments, etc.

At common law, if a fi.fa. were issued within the year and day, and nulla bona returned; or an elegit, and no execution thereon, there might be another ft. fa., elegit, or ca. sa., several years after, without scire facias, if continuance were entered from the first fi.fa. or elegit. 1 Inst. 230 ; 4 Inst. 271; Str. 100 ; 4 Com. Dig. 143, This principle of the common law was also abolished by our statute, which provides, that if five years intervene, after the date of one execution, before another is sued out, then debt or scire facias may be prosecuted, etc.

It is a well-settled rule, that an execution issued upon a dormant judgment, will be set aside on motion, and the goods or money levied, restored to the judgment debtor; and sometimes with costs. 2 Wils. 82; Tidd’s Prac, 935; 3 Caine, 270; 2 Saund. 71-74. The reason of this rule is, that after the year and day, the law presumes the judgment satisfied; and it will not permit the judgment debtor to be disturbed by an execution, without a scire facias, or other legal process.

♦This rule of the common law, and its reason, apply with equal, if not greater force, to cases under our statute, where five years elapsed and no execution issued; or where five years elapse after the date of an execution before another is sued out. But it is urged that the injunction obtained by the Cincinnati Manufacturing Company takes the ease out of the operation of this rule.

It was formerly held, that if the plaintiff had been tied up by injunction for a year and day, he could not take out execution without a scire facias. 6 Mad. 288; 1 Str. 301; Bac. Ab., Exec. But this principle has been overruled, .and it is now held, that he may afterward sue an execution without scire facias. 2 Burr. 600; 2 Saund. 72.

In the present case, however, the injunction was dissolved, and the bill dismissed in May, 1823; and more than five years having elapsed from that time, as well as from the date of the last execution, the party is in the same situation as if the injunction had never been allowed, or any execution issued.

It is also claimed, that the writ of error prosecuted in 1825, removes the necessity of suing out execution within five years from the date of the last execution.

If the defendant brings a writ of error, and the judgment is affirmed, the defendant in error may take out execution after the year, and without scire facias; because the writ of error was a supersedeas to the execution, and the defendant in error must wait until it be determined. 5 Rep. 88; Bac. Ab., Exee. 362 ; 2 Saund. 72.

But by the express provisions of our statute, vol. xxii. 70, no writ of error shall operate as a supersedeas, until bond and security are given. Notwithstanding the allowance of the writ of error, therefore, the Miami Exporting Company were at full liberty to sue out execution upon their judgment. No bond was executed, and of course there was no supersedeas to the execution.

Admitting, then, that the judgment of the Miami Exporting Company was originally valid, a point upon which we intimate no opinion, it was dormant, and no execution could have regularly issued upon it, at the time the order of appropriation was made in the court below. It necessarily follows that the moneys in ♦controversy can not be applied to discharge such a judgment. The law presumes it to have been paid ; and that presumption must be rebutted by an action, or a scire facias. Had an execution issued on the judgment of the Miami Exporting Company and the money made, the court, on motion, would set aside the execution as irregular, and restore the money to the judgment debtor. It would be an anomaly in the administration of justice, to apply money raised upon a junior judgment to the discharge of a senior judgment, when, if the same money had been raised upon the senior judgment itself, the court would set aside the execution and award a restitution of the money.

3. The claims of Davis and others, rest upon the same grounds as those of the Miami Exporting Company with one exception.

On November 11, 1823, an execution was issued on the judgment of Davis and others, upon which a sale of the real estate was made by the sheriff, on December 15, 1823, which sale, with the valuation, was set aside by consent on September 3, 1829.

Whatever may have been the rights of Davis and others, on September 3, 1829, as to the sale upon their execution, they were then lost by their voluntary appearance in court and consenting that their own purchase should be set aside. More than five years had then elapsed sinco the date of their last execution, and they were bound to know that they could issue no other execution without scire facias. The law presumes that the sale was set aside, because the debt had been paid or released; and if such be not the fact, the plaintiffs must attribute their loss, if any there be, to their own acts. It has been settled in this court, that if a levy be set aside, the parties stand in the same situation as if no levy had ever been made. 2 Ohio, 400. We see no reason why this principle should not be applied to a sale upon execution voluntarily set aside by the parties; the execution upon which the sale had been made was functus officio; no subsequent steps could be taken to enforce the collection of the judgment without a new execution; and no new execution could be sued out because more than five years had elapsed since the date of the last execution.

The judgment of Davis and others, therefore, was entitled to no share of the money in controversy.

*It is unnecessary to settle the question, whether the judgments of the Miami Exporting Company and of Davis and others have lost their priority of lien upon the real estate, or whether the purchaser under the judgment of Lytle and Avery holds the lands, discharged of the prior incumbrance of those judgments. ¥e are satisfied that the Miami Exporting Company and Davis and others, are not entitled to the moneys in controversy; and if they have any other rights, we leave them to be asserted in such manner and form as the parties may be advised.

Order reversed.