Phillips v. Dana

• Decision Date: 31 December 1842
• Citation: 4 Ill. 551,1842 WL 3818,3 Scam. 551
• Parties: Thomas Phillips et al., plaintiffs in error,v.Giles C. Dana, defendant in error.
• Court: Illinois Supreme Court

3 Scam. 551

4 Ill. 551

1842 WL 3818 (Ill.)

Thomas Phillips et al., plaintiffs in error,

v.Giles C. Dana, defendant in error.

Supreme Court of Illinois.

December Term, 1842.

Error to Peoria.

When an execution is returned to the clerk's office. it is functus officio, and the sheriff, by repossessing himself of it, does not thereby revive its validity, or obtain any authority.

It has been for a long time the settled doctrine that, if an officer levies an execution, before its expiration, he may complete the sale, as well after as before the return day of the writ. It is the duty of the officer, when he has made the levy, whatever becomes of the execution, to go on with the sale, and bring the money into court. ^a

A venditioni exponas confers no new authority upon the officer; it only compels him to do what it was his duty to do before.

Where an officer levied an execution on real estate, on the return day, and returned the writ into the clerk's office, and afterwards took it out of the office, and received from the defendant the amount of the judgment, and indorsed on the execution a satisfaction thereof: Held, that the officer had authority to receive the money, and satisfy the execution.

This was an action of debt on an appeal bond, by the defendant in error against the plaintiffs in error, in the Peoria Circuit Court. The declaration makes profert of the bond, and alleges that the defendants made their bond in the penal sum of $1,000, conditioned that Phillips should prosecute an appeal with effect to the Supreme Court, from a judgment of the Circuit Court of Peoria county, against Phillips; and it assigns for breach that he did not prosecute the appeal with effect, but the judgment was affirmed, and Phillips had not paid the plaintiffs the judgment.

The defendants filed five pleas, to which issues were taken. The first is nil debet, and issue to the country; the second, that an execution issued against Phillips, and was delivered to the sheriff of Peoria county, on September 18, 1839, and on December 17, 1839, the return day, levied on land of Phillips sufficient to satisfy it. On December 18th, Phillips paid the amount of the execution to the sheriff, who returned it fully satisfied. The replication to the second plea admits the issuing and delivery of the execution, and levying of it on the land; but alleges that the execution was returned to the clerk's office, and the sheriff received the money after the lifetime of the execution had expired, and it had been returned to the clerk's office, and he had never paid over the money. The defendant rejoined that the execution was in the hands of the sheriff when the money was paid, and Phillips, the defendant in the execution, had no knowledge that it had been returned.

The third plea states that the execution issued and was levied on land of Phillips, the defendant, sufficient to satisfy the execution, but the land was not sold for want of time. There was a demurrer to the third plea, which was sustained.

The fourth plea alleges that on December 18, 1839, Phillips, the defendant, paid the whole amount of the judgment to the sheriff, who then had the execution. The plaintiff replied that Phillips did not pay, and issue was taken to the country.

The fifth plea states that the said execution was issued and levied on land; and on December 18th, Phillips, the defendant, paid the whole amount to the sheriff. The replication denies the payment.

The bill of exceptions shows that the execution issued on said judgment against Phillips, on September 18, 1839, and was delivered to the sheriff; that on December 17th, the sheriff levied it on land of Phillips, and on the same day he returned it to the clerk's office; that on December 18, 1839, he took the execution from the clerk's office, and Hunt, as agent of Phillips, paid over the money to the sheriff, who returned the same satisfied. There was no evidence that Hunt or Phillips knew that the execution had been returned.

The cause was tried by the court, the Hon. Thomas Ford presiding, without the intervention of a jury, at the April term, 1842, and judgment rendered for the plaintiff for $1,000 debt, and $436.65 damages; the judgment to be discharged upon the payment of the damages and costs.

The cause was brought to this court by writ of error, and the several decisions of the court below were assigned for error.

O. Peters, for the plaintiffs in error:

The payment of the money, though it was paid one day after the return day, was a good payment, and discharged the judgment. It is questionable, perhaps, whether this would have been a good payment if no levy had been made during the lifetime of the execution; but the case shows that the sheriff levied upon the defendant's real estate during the lifetime of the execution.

The levy being made, the officer could sell at any time thereafter after the return day. He seized or levied by virtue of the execution, it being in full life and force; he would afterwards sell by virtue of seizure.

The defendant in error contends that all power of the officer ceased with the life of the execution; but not one of the authorities cited sustain the position assumed; they only establish this, that when the levy and sale are both made after the return day, the acts of the officer are unauthorized and void.

In the case of Devoe v. Elliot, 2 Caines Cas., 243, the property was acquired and the levy and sale both made after the return day; but the court assume that the sale might be made after return day, if a levy had been made before.

Aitkenhead v. Blades, 5 Taunt., 198, 1 Eng. Com. Law R., 76, only decides that continuing in possession improperly under a fi. fa., makes the officer a trespasser.

Winterbourne v. Morgan, 11 East, 401, was a case of distress, and the defendant was made liable by operation of the statute, and the case is not at all analagous to this.

Catlin v. Jackson, 8 Johns., 520, only settles that a seizure under a fi. fa., does not divest the debtor of his estate. So also Ex parte Penn. Iron Co., 7 Cowen, 540.

The cases cited from Breese, 290, and Appendix 15, are not analagous; the first decides that the lien created by one execution does not continue to another execution, issued upon the same judgment, and the other, merely fixing a rule of evidence as to the admissibility of a sheriff's deed.

It is well settled, that a sale may be made after return day, if the levy is made before. In Prescott v. Wright, 6 Mass., 20, the court assumes this to be the law, and expressly decides it may be done.

In Vail v. Lewis, 4 Johns., 453, the court says, the service must be made before the execution expires, but the sale may be made afterwards.

It was the doctrine of the common law, that a sale of chattels on a fi. fa. could well be made after the return day, if the seizure was made before. This is not denied, but admitted by the counsel for the defendant; and a distinction is attempted to be drawn between a levy on lands and on chattels; but the authorities do not authorize the distinction. Welsh v. Jay, 1 Pick., 484; Prescott v. Pettee et al., 3 Pick., 331, which show that sale may be made after return day, if service be commenced before.

The Supreme Court of the United States, in the case of Wheaton v. Sexton, 4 Wheat., 503; 4 Peters' Cond. R., 520, expresses surprise that a contrary doctrine should ever have been contended for. It was ejectment, and the title depended on such a sale, and it was held good.

This has been the common practice in this state. Many titles depend upon the legality of such a proceeding, which will be overturned if a different rule should be adopted. Nor is this rule of the common law altered by our statute: Practice Act, secs. 29-31. This is merely directory, but does not in any way impair the rights of the parties. It only gives a more summary remedy for neglecting to return: Ingersol v. Sawyer ut supra.;Emerson v. Towle, 5 Greenl., 197.

The statutes of Maine and Massachusetts direct a return of the execution, and yet if it is returned at any time, it is sufficient, or if it is not returned at all: Clark v. Foxcroft, 6 Greenl., 299.

It is not necessary in this case to determine what constitutes a levy, or what estate passes by it; it is sufficient that the case finds a levy was made during the life of the execution.

If, then, the officer could legally proceed to sell the land after the return day, to make the money therefrom, it needs no argument to show that he would be authorized to receive the money from the defendant, in discharge of the execution; and the counsel on the other side admit the conclusion, if the premises are correct.

2. To avoid this conclusion, it is contended that the execution, by being returned into the clerk's office, had become functus officio. This objection can not prevail, unless it is also made to appear that the defendant, or Hunt, his agent, knew this when the money was paid. The officer might have made himself liable, perhaps, for levying an execution after it had been returned; yet if he had obtained it from the clerk, and used it as if it had not been returned, everything done under, as to all ignorant of the fact, would be as valid as if it had always remained in his possession. A sale or payment under it would be good.

The case of Knowlton v. Bartlett, 1 Pick., 272, is much like the present. Bryant undoubtedly held himself out as authorized to receive the money; it is not pretended that Hunt or Phillips knew the execution had been returned. Bryant was guilty of a fraud perhaps, but the law is not so unjust as to make innocent persons suffier, who were acting in good faith by paying over money to one apparently authorized to receive it.

3. The levy upon the real estate of Phillips was a satisfaction of the execution, at least sub modo, so as to operate as a satisfaction until a sale had actually taken place.

At common law a fieri facias could only be levied on chattels, and a levy operated as a...