Hoar v. Tilden
| Decision Date | 01 March 1901 |
| Citation | 59 N.E. 641,178 Mass. 157 |
| Parties | HOAR v. TILDEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Brandeis, Dunbar & Nutter and Edward F. McClennen, for plaintiff.
Chas H. Sprague, for defendant.
The plaintiff rests his principal claim upon a contention that an officer levying an execution on property of the debtor cannot levy on real estate and personal chattels, and proceed to enforce the execution against both kinds of property at the same time. The English practice, under which a creditor in collecting a judgment must procure separate writs adapted to the enforcement of the judgment in different ways,--a capias ad faciendum if he would proceed against the body of the debtor, a fieri facias if he would levy upon chattels, and an elegit if he would take lands,--does not prevail in this commonwealth. We have, instead, one form of execution in ordinary personal actions, which is framed in the alternative, and leaves to the officer, or to the creditor under whose direction he acts, a choice of methods for the service of it. This writ of execution commands the officer to levy upon the goods, chattels, lands, and tenements of the debtor, and, for want thereof, upon his body. The creditor cannot proceed under the execution against the property and against the body of the debtor at the same time. Kennedy v. Duncklee, 1 Gray, 65; Dooley v. Cotton, 3 Gray, 496. By the common law, the commitment of a judgment debtor in execution was a satisfaction of the judgment; but by our law it is otherwise. Twining v. Foot, 5 Cush. 512; Pub St. c. 162, § 47. The alternative rights of the creditor are two,--one against the body, and one against the lands and chattels, of the debtor. In Dodge v. Doane, 3 Cush. 460, 463, Mr. Justice Metcalf, speaking for the court, says: In like manner, it has also been the practice to levy upon chattels and lands at the same time, and to proceed pari passu with the levies upon the different kinds of property until the execution is satisfied, or the property is all applied to the satisfaction of the judgment. There is no good reason for limiting a levy to one class of property until that is all absorbed, before taking property of the other class. Of course, there can be but one satisfaction of the execution. We are of opinion, therefore, that the proceedings of the defendant in this particular were well warranted in law.
No question is raised growing out of the fact that the levy upon lands was by another officer than the defendant, and we do not see that the rights of the parties in the present case are affected by that fact. Complications might arise, from an attempt of two officers to proceed under the same execution at the same time, which would be serious.
The other important question in the case relates to the levy upon money which was received by the defendant through an arrangement with the debtor as to the proceeds of property sold while held under the levy. As against Ayres, the assignee under the voluntary assignment, this exchange of goods for money, through a delivery to customers who paid cash for them, might have been held...
To continue reading
Request your trial