Mower v. Stickney

By the Gourt.

Emmett, C. J.

We learn from the record in this case that Whitney, Eenno.& Co., recovered a judgment against Burkleo & Mower in the District Court for the sum of $776.06 and issued an execution thereon, which was placed in the hands of the Sheriff. The Sheriff levied this execution upon a certain promissory note which had been given by the present Defendant, to Burkleo, one of the Defendants in the execution, but which had been pledged to one Patrick McCarthy, as collateral security for a debt of some $138, which Burkleo owed to him. This note was for the sum of $750, dated Nov. 13, 1857, and payable in two equal instalments, one in eighteen and the other in thirty-six months from date. After the first instalment became due, the Sheriff brought this action under the Statute, to recover of the maker the amount remaining due and unpaid. The complaint sets forth the recovery of the judgment — the issuing of the execution— the levy by the Plaintiff, his possession of the note as Sheriff by virtue of the levy — the maturing of the first instalment, the notice to the Defendant, demand of payment and refusal, and asks judgment for the' amount of the first instalment and interest.

The answer in one form or other denies everything except the makihg of the note, and that the Plaintiff was Sheriff-sets up the fact of the pledge, and alleges payment in full to the pledgee. The reply puts in issue the new matter set up in the answer.

On the trial the Plaintiff offered in evidence the execution referred to in the complaint. The Defendant objected that no judgment had been proved as alleged, and that the execution was not identified as connected with the judgment. *403 He also objected to tbe endorsement on tbe execution. The Court overruled tbe objection, and admitted tbe evidence. Tbe Defendant excepted, and tbe Plaintiff then rested bis case.

Tbe Defendant then introduced bis evidence; from wbicb it appears that tbe note bad been pledged to Patrick McCarthy as alleged in tbe answer, and that while in bis bands tbe Plaintiff as Sheriff, bad levied upon and taken it into bis posession under said execution. That during tbe time tbe pledgee so held the note, no part of tbe amount for wbicb it bad been pledged bad been paid. That after tbe Plaintiff bad taken tbe note into bis possession, tbe pledgee directed tbe Defendant to pay tbe balance of tbe note to one Cornelius McCarthy. That thereupon .the Defendant bad given to said Cornelius a new note for said balance, and taken a receipt from Patrick, tbe pledgee, specifying that tbe pledged note bad been paid. This was tbe only evidence of payment by tbe Defendant. It does not appear when this new note was paya: ble, and tbe Defendant admitted in bis testimony that it bad never been paid.

Tbe Plaintiff also swore that about tbe 27 th of October, 1859, be bad notified tbe Defendant of his levy on tbe .note, and demanded-payment of him.

Tbe judge charged tbe jury that “if tbe note was delivered to Patrick McCarthy as security for a debt, Burkleo bad still a leviable interest therein. That if [the Defendant paid tbe note to him, be was discharged. But that if Defendant knew of tbe terms of tbe pledge and paid tbe debt for wbicb it was pledged, and afterwards, having notice of the levy, paid tbe balance, be was not discharged as to such balance.” This charge was excepted to by the Defendant.

Tbe jury found a verdict for the Plaintiff for tbe sum of $248.80 being tbe amount of tbe first instalment and interest, less tbe debt for wbicb the note bad been pledged. Tbe Defendant thereupon moved for a new trial on tbe ground of insufficiency of evidence to justify the verdict; and for error in law occurring at the trial. Tbe motion was denied and judgment entered' according to tbe verdict.

It is urged here that tbe charge of tbe Judge was erroneous, *404 and that he also erred in admitting the execution in evidence, without proof of the judgment.

"We are unable to discover error in the charge. Promissory notes under our Statute are property, and when they can be reached are subject to attachment and execution, as any other species of property. The pledgor of personal property has an interest in the pledge equal to its value after discharging the sum for which it is pledged, and we cannot see why that interest is not subject to levy and sale upon execution, if the pledgee is willing to surrender the possession. The decisions to which we have been referred by the Defendant, as showing a contrary doctrine, are generally cases where the pledgee was a party asserting his right to the possession, and were predicated to a great extent upon the old doctrine that the pledgor had but an equitable interest in the pledge, and a mere equity could not be reached on execution at law. In this case, however, the pledgee is not a party, and therefore a rule designed for his protection only does not apply; nor, indeed, is there any necessity, under our system, where all distinctions in practice between law and equity are abolished, for adhering strictly to rules which had their origin solely in these distinctiohs.

If property be pledged by the owner, his creditors may not be able to deprive the pledgee of his possession without first satisfying his claim; yet that is a matter which concerns the pledgee alone, and if he deliver the property to the officer, we cannot see that the pledgor has any right to complain; nor why it may not be levied upon and sold subject to the claim of the pledgee. Rut where, as in this case, the pledge is a promissory note, and it be delivered to the officer, it certainly affords no defence to the maker thereof, that the pledgee need not have parted with the possession. Of what interest is it to him whether the pledgee asserts his claim or not ? He can be required to pay but once, and a payment to the officer is sufficient, his possession, if he had authority to make the levy, being good as against the maker at all events. Having ^surrendered the ¡¡pledge to the Sheriff,^the pledgee, if he ever asserts his claim, must look to him and cannot call upon the maker to pay the second time; and if he should, it *405 would be a sufficient defence that he had parted with his possession to the Sheriff, and that officer had collected the note. The Defendant, however, has denied the existence of the judgment and execution mentioned in the complaint, and :as the Plaintiff sues in his official capacity under the peculiar ;proyisions of our Statute, to collect the note levied upon to ^apply on the execution in his hands, he must show that he became possessed of the note in the manner contemplated by 'the Statute, and in this respect the judgment and execution become important.

It is objected that the denial of the judgment, being upon information and belief only, was insufficient, but we do not think this objection is well taken. The Statute expressly admits of this form of denial, and we think such denial good wherever the facts thus denied are not necessarily within the knowledge of the party denying. And although in this case the judgment pleaded is matter of record, and the Defendant might readily have informed himself of the truth or falsity of the allegation ; yet as he may not in fact have had knowledge or information sufficient to form a belief on the subjpct, and was not bound to take notice of judicial proceedings to which he was not a" party, he might, if he chose so to do, adopt this form of denial. It might perhaps have been sufficient for the Plaintiff to have set up in his complaint the issuing of the ■execution and the levy, but having tendered an issue upon the judgment, we think he is bound to prove it. Had he not' averred the recovery and existence of the judgment, and no such judgment had in fact been recovered, or was not then in existence, and the Defendant had so pleaded, this would have been a complete defence to this action. It certainly ought not to make any difference in the trial of this issue whether it be tendered by the Plaintiff or the Defendant. If the Plaintiff is bound to prove the judgment in the ordinary way, when the Defendant avers that it does not exist, and the reply takes issue upon the averment, why should he not be required to do so when he avers the existence of the judgment himself and the Defendant denies it ? The issue of the recovery or existence of the judgment was not in our opinion an immaterial issue, nor was the judgment proved by the execution or the * *406 recitals in the Execution, for non constat that .there was a judgment; and if the judgment did not exist, the execution falls to the ground.

We are therefore of opinion that the Court below erred in holding that the judgment need not be proved by evidence aside from the execution itself. Had this been an action brought by the Defendant in the execution against the officer for taking this property, then the execution, if regular upon its face, would have been sufficient without proof of the judgment, and this too perhaps whether there was really a j udgment in fact or not; for it is the policy of the law to protect its officers in the execution of the process of the courts, so long as they keep within the commands or authority of the writ in their hands. But the protection thus afforded by the writ alone, is confined strictly to the officer and to his official acts done in pursuance of its commands, and does not extend to any one else though claiming under these very official acts— nor is the officer even protected, where the action is brought by any one other than the judgment debtor. Hence, where the action is by or against the purchaser at the sale of property taken in execution, or against the judgment creditor, or by or against any one who may claim the benefit of the official acts of the officer, the execution alone is not enough, the judgment too must be proved. Wherever the title to property taken on execution by an officer is directly in issue, the judgment, being essential to the validity of the execution, must be proved by him who claims under it, because it is a necessary link in his chain of title. While therefore the execution alone would fully protect the officer in this instance, against an action by the pledgor or judgment debtor; yet, when fie is asserting a quasi title by virtue of the levy, as against a party other .than the judgment debtor, the judgment is essential to the perfection of that title, and if put in issue must be proved as in other cases.

In regard to the plea of payment the evidence is clear that no part of the note was paid in fact, except a sum equal to the debt for which it is pledged, and this, although made after the levy was allowed by the jury. And even should the giving of a new note have been construed into a payment, we *407 think the Judge stated the law correctly when he charged the jury that if the Defendant, after discharging the debt for which the note was pledged, paid the balance to the pledgee after it had been levied upon, and with a full knowledge of the levy, he was not discharged as to such balance.

Judgment reversed, and a new trial awarded.