Folsom v. Carli

• Citation: 5 Minn. 264
• Parties: WILLIAM H. C. FOLSOM et al. vs. CHRISTOPHER CARLI.
• Decision Date: 01 January 1861
• Court: Minnesota Supreme Court

5 Minn. 264

WILLIAM H. C. FOLSOM et al. vs. CHRISTOPHER CARLI.

Supreme Court of Minnesota.

Appeal from judgment of district court, Washington County.

Carli brought suit in the district court, Washington County, against W. H. C. Folsom, E. W. Somers, G. M. Stickney, alleging, in substance, that in 1857 one Lee recovered judgment in said court against defendants, N. McKusick and J. E. McKusick, partners as N. McKusick & Co., and defendant Folsom, upon a promissory note made by N. McKusick & Co. to Folsom, and by him indorsed and assigned to Lee; that an execution was issued and levied apon a house and lot belonging to N. McKusick; that under the statute McKusick claimed the property as exempt as a homestead, and the sheriff released his levy; that afterwards Folsom paid the judgment, but instead of having the same satisfied on the record, took an assignment thereof to defendant Somers, who held the same for Folsom's benefit; that afterwards McKusick sold and conveyed the premises to plaintiff, and left the state; thereupon Somers and Folsom issued an execution on the judgment, advertised and sold the property, Folsom bidding it in; the complaint alleged certain irregularities in the proceedings which it is not necessary to mention; that Folsom was about to procure a deed from defendant Stickney, the officer who sold on the execution.

The plaintiff prayed that the judgment might be declared not a lien on the premises; the cloud on plaintiff's title removed, and Stickney restrained from executing, and Folsom from receiving, a sheriff's deed, etc.

The answer admitted the judgment, the conveyance to plaintiff, the sale on execution, but denied the irregularities set up in the complaint, and then denied, "on belief, each and every allegation of the complaint" not admitted, etc.

The district court rendered judgment on the pleadings in favor of the plaintiff, and the defendants appealed.

Points and authorities for appellants: —

1. Where, under the statutes of Minnesota, an action is brought by the indorsee of a promissory note against the makers and indorser, and one judgment entered against all the defendants, payment of the amount of the judgment by the indorser to the indorsee (plaintiff), and an assignment of the judgment by the plaintiff to a stranger, does not extinguish the judgment, and is not a satisfaction of it as against the makers of the note. Low v. Copestake, 3 Car. & P. 300; Chitty on Bills (Springfield Ed. 1836), 567; 20 Johns. 369; Havens v. Huntington, 1 Cow. 387; Ainslie v. Wilson, 7 Cow. 662; Harger v. McCullough, 2 Denio, 119; Clason v. Morris, 10 Johns. 524; Matter of McKinley, 1 Johns. Cas. 137; Stiles v. Eastman, 1 Kelly (Geo.) 205; Wilson v. Wright, 7 Rich. 399; Corey v. White, 3 Barb. 12; Kelsey v. Bradbury, 21 Barb. 531; Comp. Stat. 535, 536, 574, 121; 3 N. Y. Rev. Stat. 658, 659, 99-104; N. Y. State Bank v. Fletcher, 5 Wend. 85.

2. The judgment in the complaint mentioned was, from the date of being docketed, a lien upon the premises described in the complaint, and at the time of the sale complained of, the said premises were subject to levy and sale under execution, the exemption continuing only during the occupancy of the premises by the judgment debtor, his widow, or minor child. Comp. Stat. 566-577; id. 569-592; Rev. Stat. 363-393; Sess. Laws, 1860, p. 286.

3. The question of levy or no levy could only be determined by the sheriff's return, and that return could not be contradicted or impeached in this kind of action. Tullis v. Brawley, 3 Minn. [277]; Messer v. Bailey, 31 N. H. 9; Hallowell v. Page, 24 Mo. 590; Newton v. The State Bank, 14 Ark. 9; Castner v. Styer, 3 Zabr. (N. J.) 236; Huntress v. Tiney, 39 Me. 237; Clough v. Monroe, 34 N. H. 381; Ladd v. Wiggin, 35 N. H. 421.

4. A sheriff's return should not be impeached or disregarded before the court, when it could not be contradicted, impeached, or disregarded, before a jury. Angell v. Bowler, 3 R. I. 78; Delinger v. Higgins, 26 Mo. 180; Pratt v. Phillips, I Sneed (Tenn.) 543.

5. It was not requisite that the sheriff should set forth in his return all the acts done to constitute a levy, or the attendant circumstances. Tullis v. Brawley, 3 Minn. [277]; Van Kirk v. Wilds, 11 Barb. 520.

Points and authorities for respondent: —

1. The complaint in this action states a cause of action sufficient in law upon two sets of allegations, viz.: First, the facts showing that there was no levy; and, second, the facts showing a satisfaction of the judgment under which the property is claimed by and for the benefit of Folsom. To first branch refer to Castner v. Symonds, 1 Minn. [427], &c. Second branch, Harbeck v. Vanderbilt, 20 N. Y. 395, &c. Comp. Stat. 574, § 120.

W. H. Burt, for appellants.

J. B. Brisbin, for respondent.

EMMETT, C. J.

The indorser of a promissory note may, at any time after it becomes due, pay the amount to the legal holder, and at once proceed to enforce it against the maker, or, in case several judgments have been obtained on such an instrument, against him and the maker, may pay the judgment against himself, take an assignment of that against the maker and enforce it in his own behalf. These are propositions too well settled to require a reference to authorities, and are fully sustained by the cases referred to in the appellants' brief. And they necessarily dispose of the first branch of the plaintiff's case, unless our statute — which authorizes a plaintiff, at his option, to include in one action all persons severally liable upon the same obligation or instrument, including the parties to bills of exchange or promissory notes, and sureties on the same, (Comp. Stat. 535, § 36) — changes the law as to this state. We cannot believe, however, that any such change was intended. The legislature sought, by the provision referred to, merely to avoid a multiplicity of actions, but never intended thereby to put it in the power of the holders of such instruments to change or in any way affect the legal or equitable rights of the persons liable thereon, in their relations or responsibilities to each other, by any course or form of action he might pursue. The holder of the note, on which the judgment referred to in the pleadings in this case was rendered, might, notwithstanding this statute, have obtained separate judgments against both makers and indorser, in which event, as we have before stated, Folsom, the indorser, might have paid the judgment against himself, taken an assignment of the judgment against the makers, and enforced the latter to reimburse himself. And should he now be deprived...