Williams v. Boyce

• Decision Date: 31 July 1848
• Citation: 11 Mo. 537
• Parties: WILLIAMS v. BOYCE.
• Court: Missouri Supreme Court

11 Mo. 537

WILLIAMS

v.BOYCE.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO PIKE CIRCUIT COURT.

BROADHEAD, for Plaintiffs.

I. The judgment against the plaintiffs had been satisfied before the issuing of the last execution from the justice's court, for two reasons: 1. Where goods sufficient to discharge the judgment are seized on a fieri facias, the debtor is discharged. 4 Mass. R. 402; 6 Mass. R. 58; 16 Mass. R. 63; 4 Burrows, 2482; 3 Mo. R. 249; 9 Mo. R. 24; 12 Johns. 207; 7 Johns. 428; 2 Ld. Raym. 1072. 2. The agreement to rescind the original contract for the sale of the land was a virtual satisfaction of the execution, and the plaintiff's remedy was on the new contract. 4 Burrows, 2482.

II. A fieri facias against the lands and tenements cannot issue on a transcript of a judgment rendered before a justice of the peace, when there is sufficient personal property within the control of the constable belonging to defendants in the execution to satisfy the same. Rev. Code, 1845, p. 659, § 18.

PORTER, for Defendant.

MCBRIDE, J.

Boyce sold to the Williams a tract of land for the sum of $1,200, payable in four equal installments, and gave them his bond for a title, to be made on the payment of the purchase-money, and they gave him their notes for the consideration. Williams went into possession under the purchase, and, after making a payment, suffered suit to be instituted for a balance due on one of the notes, and judgment was rendered thereon by a justice of the peace for about $140. Execution was issued upon this judgment, and property of the defendant, sufficient to satisfy the same, was levied upon by the constable; but before day of sale the parties agreed to rescind the contract, on the condition that if Williams would return the possession, the plaintiff would give him up his notes and release the judgment. Under this agreement the property levied upon was restored to Williams, and the execution returned to the justice's office. Afterwards, Boyce sold his interest in the land and the judgment against Williams to one Bacon, who demanded possession of the land from Williams, offering to have the judgment satisfied on the condition that he would give possession, but Williams refused to give possession. Bacon then issued execution on the judgment, and placed the same in the hands of the constable, who subsequently returned it nulla bona. Then a transcript of the justice's docket was obtained and filed in the clerk's office, upon which an execution was issued by the clerk, which was placed in the hands of the sheriff, who levied the same upon the real estate of Williams, who thereupon filed his motion to quash the execution, for the following reasons: 1. Because the judgment upon which said execution was issued had been paid off and discharged before the issuing of said execution. 2. Because the execution issued upon the transcript of a judgment rendered by a justice of the peace, without any execution having been issued by said justice and legally returned. 3. Because the execution was issued without any order, direction or authority on the part of said plaintiff. 4. Because...