Waters v. Largy

The opinion of the court was delivered by

Kennedy, J.

If the judgment against Largy in favour of Goddard was paid by Cash for the purpose of extinguishing the lien of it upon the real estate of Largy it could not be revived afterwards by Goddard’s attorney directing the judgment to be marked on the docket for Cash’s use. Now from the evidence, it is utterly impossible that -the most sceptical mind should doubt as to the object of paying this judgment. It was a lien upon the real estate of Largy, when Peterson was applied to, to lend his money upon a mortgage to -be.given upon the estate as a security for the re-payment of it. But he objected to lending, unless this lien were removed, and in order to effect this, Cash paid Mr. Goddard the principal of the judgment, and at the time of receiving the money on loan from Peterson for Largy, he promised that before he parted with it he would have the interest and cost of the judgment settled likewise; for which purpose the receipt given by Mr. Goddard for the principal of the judgment was left by Mr. Peterson with Mr. Cash that he might procure a receipt on the same for the interest and costs! Accordingly the receipt was afterwards returned to Mr. Peterson with an entry on it of the interest and costs having been paid. Under what arrangement Cash advanced the principal of the judgment for Largy does not distinctly appear, but certain it is that it could not have been under an agreement that he was to have the judgment assigned to him as a security for his being reimbursed, because a continuance of the judgment in force would have been incompatible with,the end of advancing the money, which was to have the lien of it extinguished. Hence it is not material to know how Mr.' Cash expected to be reimbursed. But no doubt if he had wished, he could have had it out of the money loaned by Peterson, as that all passed through his hands. Be that however as it may, it is certain that the judgment was paid for the special purpose of extinguishing its lien. And of all this Mr. Waters seems to have been fully advised before he lent his money to Largy and.took from him his judgment for the re-payment of it. Largy himself prevailed on Mr. Peterson to furnish the z-eceipt of Mr. Goddard in order to satisfy Waters that it was paid.

But it is said that the judgment of Goddard being marked on the docket for the use of Cash before and at the time Waters advanced his money and took from Largy a judgment for the repayment of it; Waters was bound to take notice of Goddard’s judgment, and to know that the amount of it was claimed by Cash. Admitting this to be so, still it will not make the claim of Mr. Cash under the judgment good and available. The judgment being once satisfied and extinguished could not possibly be revived afterwards by any act of Mr. Cash, or of Mr. Goddard or his attorney, or all or any of them without the consent of Largy the defendant. But it does not appear that his assent was ever given or even asked for such a purpose; consequently the judgment of Goddard must be considered satisfied, and could therefore be no lien on the real estate of Largy at the time Waters obtained his judgment. Waters therefore is entitled to the money that was appropriated by the decree of the court below to the payment of Cash’s claim under Goddard’s judgment. I think there is much less plausibility, in the claim of Cash than there was in that of Porter’s Executors v. Neff, 11 Serg. & Rawle, 208, where on the 1st of May, 1807, A executed a mortgage to B. which was duly recorded. On the 14th of March, 1815, C. entered up a judgment for two thousand dollars against A. under a warrant of attorney. On the 17th of the same month A. conveyed the mortgaged premises to D. for the consideration of twenty-eight hundred dollars, twenty-three hundred of which he paid and agreed to pay to B. the mortgagee five hundred dollars, being the balance of the purchase money and the balance due on the mortgage; part of which he paid in his lifetime; and the z-esidue was paid after his death by his executors, who took an assignment of the mortgage from the mortgagee on the 23d of September, 1818. The mortgaged premises were levied on and sold by the sheriff under the judgment of C. to C. himself. Held, that C. was entitled to retain the amount of his judgment out of the purchase in preference to the claim of D.’s executors under the assignment of the mortgage.

The decree of the court below is reversed, and the money thereby appropriated to the payment of Cash’s claim under the judgment in favour of Goddard against Largy, is ordered and decreed to be paid to Charles Waters the appellant.

Judgment reversed.