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Knox et al. v. Vallandingham et al.

tribution under the following circumstances. A promissory note was executed by one Dulaney as principal, and H. C. Stewart and J. T. Knox as sureties. Suit was brought on the note, and judgment recovered against Dulaney, Stewart, and Knox's legal representative, he having died in the mean time. Dulaney became insolvent, and execution was levied on the property of Stewart alone, who gave a forthcoming bond with complainants Vallandingham and Lewis as sureties, in which capacity they had the money to pay, Stewart having also become insolvent; and they now seek redress against Knox's estate, on the ground that he was jointly bound with Stewart for the original debt.

There was first an answer by the guardian ad litem, and then a demurrer. The court proceeded to decree on the merits of the bill and exhibits, and so we shall consider the case, without noticing the state of pleadings.

THIS

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We do not think the decree can be sustained, for several reasons. It was not a case in which the hosténtitled to contribution; they were but surees for Stewart; there was no privity between them and Knox. Asuty has not claim for contribution. This is the inciple settled in Tom v. Goodrich, 2 Johns. 214. One partner gave a bond for a partnership liability, and his sureties had the money to pay. Chancellor Kent held, that although the partner who gave the bond could have resorted to his co-partners for contribution, yet his sureties had not the same right, as they became bound for the obligor individually. Stewart, by giving the bond, and permitting it to be forfeited, satisfied the judgment, and discharged his codefendants. These complainants were only surety for Stewart in the means employed to discharge the debt. It is not unlike the case cited by counsel, from 2 Dev. & Batt. Eq. Rep. 399. Their securityship is a separate and distinct transaction, and in such cases the right to contribution does not exist. Burge on Suretyship, 385. It is not a case in which the right of subrogation exists, because the original liability was extinguished; they could, at most, claim to be substituted to nothing else but the right of the plaintiff in the judgment on Stewart's bond; whether they had such right need not now be decided, since that would not help them.

Lee v. Boykin.

This point disposes of the case, and we need not notice. others.

Decree reversed and bill dismissed.

THOMAS N. LEE vs. JOHN P. BOYKIN.

The true construction of the act of 1844, authorizing the sale of judgments for costs considered, and held to be that, where the defendant in the judgment, or one of the defendants, has purchased the judgment at the sale, the judgment is thereby extinguished and satisfied; subject, however, to the right of the plaintiff at any time within three years to sue out a scire facias against the defendant, and show that he has other property besides that which he gave for the judgment; in which event the sale is vacated and the judgment revived; but the plaintiff cannot redeem from the defendant.

Whether this law for the sale of judgments for costs be constitutional, and whether a valid order of sale can be made without notice to the plaintiff in the judgment, left to be determined hereafter.

ON appeal from the circuit court of Hinds county; Hon. George Coalter, judge.

The facts are stated in the opinion.

A. Burwell, for appellant,

Insisted that the law authorized the right of redemption in all cases; there was no limitation upon it. Hutch. Code, 920.

John Shelton, on same side,

Contended, that the purchase by the defendant was but a conditional satisfaction, defeated either by tender of the money bid, or a scire facias as provided for.

Amos R. Johnston, for appellee,

Reviewed the law, and argued that it, in express words, extinguished the judgment when defendant purchased; and but one remedy, that of scire facias, in that case was given plaintiff. He could not redeem, for the judgment was satisfied.

Lee v. Boykin.

Mr. Chief Justice SHARKEY delivered the opinion of the court. This case involves a construction of a portion of the act of 1844, in relation to the sale of judgments for costs. The plaintiff claims to be the assignee of a judgment against the defendant and five other persons, which was sold under the act, and purchased by the defendant. The plaintiff, within the two years, offered to redeem by a tender of the purchase-money, with ten per cent. interest, which being refused, he moved the court for an execution, which was overruled. The single question presented is, Does the right of redemption exist when the judgment has been purchased by a defendant?

The first section provides, "That the plaintiff, whose judgment may have been sold, shall have two years to redeem such judgment; and the payment or tender by him, to the purchaser of said judgment, of the amount of the purchase-money with ten per cent., shall revive the said judgment in his favor, as though the same had never been sold." Acts of 1844, p. 208. If the act contained no further provision on the same subject, no difficulty could arise; the right to redeem would be unquestionable. But it is denied on the strength of the subsequent provisions. The second section makes it the duty of the sheriff to assign the judgment to the purchaser, and gives him the benefit of an execution in the same manner, as if the judgment had been recovered in his name. The fourth section provides, "That if the defendant, where there is but one, or where there are more than one who are principals, shall be the purchaser, the sale and assignment by the sheriff to said defendants, or either of them, if more than one, shall operate as a complete satisfaction and extinguishment of said judgment or decree." The subsequent part of the section prescribes a rule for contribution, and further, that a purchase by a surety shall also operate as an extinguishment. The twelfth section gives a scire facias within three years, when the judgment has been purchased by a defendant therein, on which it may be shown that the defendant, at the time of such purchase, or some other person for him, was possessed of property or effects other than the sum paid on such purchase; and upon such showing, it

Lee v. Boykin.

directs that the sale shall be vacated and the lien of the judgment revived.

There is great difficulty in arriving at the true meaning or intention of the legislature. The first section gives a general right to redeem, and without qualification this would confer the right as against any purchaser. But the fourth section must be regarded as qualifying the general right. The language seems to be so plain as to leave no room for doubt. We cannot say that a certain act shall not amount to satisfaction, when the legislature has said that it shall. There might be some plausibility for saying, that the fourth section was designed to prevent one defendant from running an execution which he had purchased against his co-defendant, and yet we can scarcely feel warranted in holding that to have been the intention. If that were the design, the legislature could have said so in so many words. So to construe the act, would be a departure from the language, without any certainty that we have reached the meaning. It is unsafe to depart from the language of the statute, and adopt a meaning which is doubtful. Besides, the twelfth section seems to have been intended to protect the plaintiff against a defendant who had become the purchaser. True, this section would afford him no remedy, unless he could show that the defendant had some other effects besides the amount invested in the purchase of the judgment, and the consequence is, that when a defendant, who has purchased a judgment against himself, has no effects at all, the plaintiff cannot reacquire his judgment. This effect seems to militate against the equal operation of the statute.

The validity of the statute is not questioned, nor are we called on to decide on the validity of the sale. We leave it to be hereafter determined whether the act be valid, and particularly whether an order of sale can be made, without notice, to the plaintiff in the judgment. Judgment affirmed.

Money v. Miller.

JAMES MONEY, County Treasurer of Carroll County, vs. WILLIAM
N. MILLER.

Notes given for loaned money belonging to the school fund of the respective counties in the state, are not exempted out of the operation of the statute of limitations; those funds are not the property of the state, but they belong to the several counties under the control of the school commissioners of each county.

In error from the circuit court of Carroll county; Hon. Francis M. Rogers, judge.

The facts are stated in the opinion.

Cothran, for plaintiff in error, cited Hutch. Code, 231, 232, 11; 1 How. 139; Ang. on Lim. 35; 4 How. 24.

Sheppard, for defendant in error,

Contended, that there was no reason why the statute should not apply. The fund belonged to the county for school purposes, and not to the state; there was no exception in favor of the county.

Mr. Justice CLAYTON delivered the opinion of the court.

The only question in this case is, whether the action is barred by the statute of limitations.

The note bears date 11th of October, 1836, and was given to the president of the board of police of Carroll county, for a loan of money belonging to the school fund. The suit was commenced in May, 1848. More than six years elapsed from the time when suit might have been brought, before it was commenced. It is insisted that the principle which protects the government from the operation of the statute of limitations, will prevent the bar in this case. The government is exempted

21 531 71 619 71 958

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