Kezar v. Elkins , 52 Vt. 119 ( 1879 )

The opinion of the court was delivered by

Redfield, J.

Ewins had recovered judgment against the plaintiff, and the property sued for was in our legal form sold by the sheriff on the execution issued on said judgment. The plaintiff claimed that the judgment had been paid, and that the sale to the defendant was by arrangement with defendant that he should bid in the property for the benefit of the plaintiff.

I. The plaintiff offered to show that at the time of the rendition of said judgment he had a claim in offset against said Ewins’s claim which was not considered or deducted in making up said judgment; the court excluded the evidence, on the ground that the judgment was conclusive upon all matters of claim between the parties up to that time. It is certain that a claim in offset would not be concluded by a judgment when it was neither pleaded, considered, nor deducted in making up the judgment. It has often been decided in this State that in actions of general assumpsit in the common counts the judgment is conclusive only of such claims and items of claim as were in fact submitted and adjudicated; and evidence aliunde is admissible to prove what claims and items the judgment embraced. In the absence of any specification, it would be presumed, prima facie, that all items of claim upon which plaintiff might recover in the common counts, were considered and merged in the judgment. But the plaintiff would have no right tó include in the judgment any proper offset of the defendant, unless the defendant appeared and pleaded such offset; and there can be no presumption that such offset was pleaded, especially as the record shows that the defendant did not appear, and judgment was rendered on default of an appearance. Squires v. Whipple, 2 Vt. 111; Gray v. Pingry, 17 Vt. 419 ; Atwood v. Robbins, 35 Vt. 530; Barney v. Goff, 1 D. Chip, 304. The exceptions state that the amount of the indebtedness from the plaintiff to Ewins “ was in dispute, and became a material question.” We think it was error to exclude proof of the items on which the judgment was founded; and whether all, or a part, of his claims of indebtedness were merged in that judgment.

II. The court charged the jury in substance that if the judgment had been paid prior to the sale to Elkins, it would not defeat Elkins’s title, unless, at the time of his purchase, he knew that the judgment on which the execution issued had been paid and satisfied ; and that this would be so, although Elkins had “ cause to know ” and reason to believe that the judgment for the satisfaction of which the property was being sold on execution, had before that been fully satisfied and paid. The officers of the law are justified in acts done in good faith under process “ good on its face.” But process that is void can protect no one, although apparently good ; hence, there has been much discussion upon the line of distinction between what is void and what is merely voidable. Some cases hold that unless the judgment is satisfied of record, the execution regularly issued justifies the officer in all acts done under it, and consequently would render valid any sale of property upon it. Other cases hold that if the judgment, as between the parties, is satisfied, there is nothing to uphold the execution, and it does not justify the officer in attempting to execute it. We think it clear that the use of the property by Ewins, which he agreed to have applied in payment of the plaintiff’s indebtedness to him, if it was expected that the parties were thereafter to compute and adjust the accruing use, and make the application, would not extinguish the judgment until the application had been made, and the sale upon the execution would, in such case, be valid. But if the judgment had been paid and satisfied, either in money or other executed consideration, and the purchaser had good reason to know the fact, he is affected with notice; and the purchase of property on an execution known to the buyer to have been fully satisfied, is in bad faith and invalid.

The case of Pierson v. Gale, 8 Vt. 509, makes the true distinction, and indicates the true rule. In that case the execution had been paid and surrendered as the evidence of payment, which the court seemed to regard as equivalent to a discharge of record. But it seems to us, the satisfaction and payment of an execution, so that it should be held to have lost all vitality as a process, depends not so much upon the nature and kind of evidence, as upon the fact of payment. It must not depend on offset, or an executory agreement to apply certain claims in. satisfaction. The agreement must have been executed, so that the debt of which the execution is the evidence, is satisfied and extinguished. The unqualified statement in the charge of the court on this point, we think was error.

Judgment reversed, and cause remanded.