E. Greenwich Inst. for Sav. v. Allen

• Decision Date: 11 January 1901
• Citation: 22 R.I. 337,47 A. 885
• Parties: EAST GREENWICH INST. FOR SAVINGS v. ALLEN et al.
• Court: Rhode Island Supreme Court

47 A. 885

22 R.I. 337

EAST GREENWICH INST. FOR SAVINGS

v. ALLEN et al.

Supreme Court of Rhode Island.

Jan. 11, 1901.

Interpleader by the East Greenwich Institution for Savings against S. W. K. Allen and another. Judgment in favor of defendant S. W. K. Allen.

Charles J. Arms, for complainant.

Samuel W. K. Allen and Edwards & Angell, for respondents.

DOUGLAS, J. This is a bill of interpleader, in which the fund, consisting of the surplus arising from the sale under mortgage of certain land belonging to Washington I. Spencer, is claimed by each of the defendants. From the agreed facts it appears that A. B. Rice & Co., on April 30, 1880, attached the interest of Spencer in this land, which was subject to the mortgage aforesaid, and on October 12, 1883, recovered judgment against him for $635 and costs. Execution was duly issued thereupon, returnable at the next term of the court, March, 1884, and was levied by Samuel L. Tillinghast, deputy sheriff, October 13, 1883. Under this levy, but without proper advertisement, another deputy,—Charles H. Martin,—on January 10, 1884, sold at public auction, to Allen, for $700, the interest in said land which Spencer had at the time of the attachment, and gave to Allen a sheriff's deed of the same in proper form, wherein it is recited that Allen had paid him the sum of $700. Allen took this deed, and had it recorded January 18, 1884. Allen now testifies that he did not pay the sheriff any money at that time. It appears that, very soon after this deed passed, the parties discovered that the advertisement was defective, and thereupon, on January 28, 1884, the execution was again levied by Martin, and, after due advertisement and notice, the attached property was again sold to Allen, on May 3, 1884, for $655. Another deed was given him by Deputy Martin, dated May 7, 1884, which was duly recorded. It does not appear whether the execution in the original case was ever returned, and it cannot now be found, and no copy of it or of the officer's return seems to have been made; but such return is not necessary to vest the title in the purchaser. Foster v. Berry, 14 R. I. 601. January 18, 1884, Spencer conveyed to defendant Potter all his right, title, and interest in the property in question by deed of that date, duly recorded the same day; and Potter now claims that Allen has no title, and hence the fund belongs to himself. It is plain, under the decisions of this court, that the first sale and deed were void. Wilcox v. Emerson, 10 R. I. 270; Goldsworthy v. Coyle, 19 R. I. 323, 33 Atl. 466. And Potter claims further that the second deed is equally invalid, because the first deed acknowledges the receipt of the purchase money, and hence, the execution being satisfied, the sheriff had no power to proceed further. It is undoubtedly true that, after an execution is satisfied by payment to the creditor or to the officer who holds it, it does not authorize any further service. The execution, having performed its office, is of no further validity. This proposition hardly needs authority, but is amply sustained by many decisions. 11 Am. & Eng. Enc. Law (2d Ed.) 713, 714, note 1, and cases cited. But it is equally true that, if there are irregularities in the proceedings upon the levy and sale under an execution which make the sale void, there is no real satisfaction, and, unless the execution has become void from lapse of time, there seems to be no good reason why it may not be further served until satisfaction of the judgment is obtained. In Townsend v. Smith, 20 Tex. 465, it is said: "A levy upon land is no satisfaction of the judgment. Nor does the sale and purchase of the land by the judgment creditor operate a satisfaction of the judgment if, by reason of any substantial defects in the execution or proceedings thereon, no title passed to the purchaser. If the title to the land was not affected by the sale, the consequence is that the judgment debtor is the owner of his estate as before, and the judgment remains in force, unaffected by anything done under the execution. This seems clear upon principle, and is well settled by authority in point" After the first levy and sale, therefore, the sale being void, the judgment remained in full force, and the order in the execution to collect it...