Dehority v. Paxson

• Decision Date: 30 May 1888
• Parties: Dehority v. Paxson et al.
• Court: Indiana Supreme Court

115 Ind. 124

17 N.E. 259

Dehority

v.Paxson et al.

Supreme Court of Indiana.

May 30, 1888.

Appeal from circuit court, Madison county; D. Moss, Judge.

Action by James M. Dehority against Joseph R. Paxson and others to foreclose a mortgage. There was judgment for defendants, and plaintiff appeals.

Robinson & Lovett and M. A. Chipman, for appellant. Henry & Ryan, for appellees.

Mitchell, J.

Petition by Dehority to reinstate the record of an alleged unsatisfied judgment and decree foreclosing certain mortgages, entered at the June term, 1880, of the Madison circuit court, in favor of Frederick Tykle against Joseph R. Paxson and David Foland, for $1,800 and upwards, which record, it is alleged, had been destroyed by fire, in a general destruction of the records of the Madison circuit court, resulting from the burning of the courthouse on the 10th day of December, 1880. It is alleged that the judgment and decree had been duly assigned by Tykle to Dehority. Simon, and others, who were parties to the original decree, and were alleged to be the holders of junior mortgages on the real estate mortgaged to Tykle, answered, admitting the facts stated in the complaint or petition; but in avoidance they averred that both the mortgages foreclosed by Tykle had been executed as a security for the same debt; that one covered certain real estate upon which the defendants held junior mortgages, to secure debts owing to them respectively by the mortgagors; and that the other, which had been duly foreclosed by the plaintiff's assignor, covered a large amount of personal property owned by the mortgagors, of the value of $2,500, which property the plaintiff had caused to be sold by the sheriff, on a certified copy of the decree of foreclosure mentioned in the complaint. It is alleged that the plaintiff bid off, and purchased the personal property covered by the chattel mortgage at the sale, for the nominal price of $232, although it was reasonably worth $2,500. As a conclusion drawn from the foregoing facts, the pleader states that the judgment and decree taken by Tykle, and by him assigned to the plaintiff, have been fully satisfied by the above-mentioned sale.

The court held the answer sufficient on demurrer, and the only question involved relates to the propriety of this ruling. Counsel for appellee assert, and seek to maintain the proposition, that whenever property of a judgment debtor of a value sufficient to satisfy the judgment has been levied on, and the title of the judgment debtor has been divested and lost, whether by an execution sale or otherwise, the judgment is to be deemed satisfied to the extent of the value of the property thus taken. At least, it is said, this must be the rule as respects the execution plaintiff, and those holding junior incumbrances. The proposition is not maintainable. It has often been broadly stated that a levy upon the judgment debtor's personal property, of sufficient value to satisfy the execution, was per se an extinguishment of the judgment, and hence a satisfaction of the execution. The inaccuracy of this statement has been repeatedly shown. Such a levy is not an absolute satisfaction, but is to be considered a prima facie payment or satisfaction sub modo. If it appears that the levy has been regularly exhausted by a sale duly made, and that the sale has failed to produce a sum sufficient to satisfy the judgment, the levy and sale will be regarded as satisfaction pro tanto, and a new execution may be had for the residue. The most that can be said is that a levy upon goods of sufficient value to pay the judgment raises a presumption that the execution is satisfied. This presumption may be overcome by a return of the officer showing that the property had been duly and lawfully sold, and that a sale regularly made had not been productive of sufficient to pay the debt. McIntosh v. Chew, 1 Blackf. 289;Neff v. Hagaman, 78 Ind. 57;McCabe v. Goodwine, 65 Ind. 288;Richey v. Merritt, 108 Ind. 347, 9 N. E. Rep. 368; U. S. v. Dashiel, 3 Wall. 688;Trapnall v. Richardson,...