Woodward v. Munson

The plaintiff sues to recover money paid, as he contends, in discharge of his liability upon a receipt, given to an officer, for personal property attached on the writ, in an action in which a judgment was rendered against the defendant. The question submitted is whether the plaintiff can maintain this action on the facts stated in the report.

• It appears that the judgment was rendered on August 26, 1876; and that, upon the execution issued thereon, a demand was duly made on the receipt, for the property attached. This demand was not complied with by a delivery to the officer. The real estate of the defendant was also taken on the execution, by a levy which was completed on October 31, and by reason of which the execution was returned wholly satisfied. The return of the officer is conclusive upon the parties to that suit and their privies. Pullen v. Haynes, 11 Gray, 379.

A deed from the execution creditors, of all right, title and interest in the land levied on, was delivered to the plaintiff in this action on November 27, upon his paying the amount of the execution and the costs thereon. At the same time, the plaintiff’s receipt for the goods attached, upon which an action had been commenced, was given up to him. By this levy, the debt secured by the attachment of the property, for which the receipt was given, was paid and satisfied, and the plaintiff’s liability on the receipt discharged. The execution creditors, after the execution was returned and recorded, had no power to waive the levy and render it void, on account of any supposed error or defect in the proceedings; nor had they the right to resort to any other remedies for the satisfaction of the judgment without first causing the levy to be set aside by writ of scire facias. Gen. Sts. c. 103, §§ 20, 22.

Under these circumstances, the transactions set forth in the report amount, at most, only to an arrangement entered into without the knowledge of the defendant in this action, by which, in order to relieve himself from liability on his receipt, the plaintiff agreed to take a deed of the land levied on, and to pay therefor the amount of the judgment debt. If, by reason of the depreciation in real estate, the land is not now worth *105the amount for which it was tian, the defendant cannot in appraised when taken on executhis way be called on to make it good.

Plaintiff nonsuit.