Albany City Bank v. Dork

The objection to the plea for multifariousness is well taken. It sets up two distinct points; First, that the execution was improperly returned unsatisfied; and, Second, that, as defendant was the owner of real estate out of the county of Wayne, and had informed complainant’s solicitors of that fact, at, or about, the time the action was commenced at law, complainant should have taken out an alias execution, directed to the sheriff of the county in which such real estate is situated. Either of these positions, if well taken, would be a good defence to the bill; and the evidence that would establish one, would not establish the other. They are as different from each other as two separate pleas. The first denies a proper return of the execution; the other, conceding that point, insists that an alias execution should have been issued. A plea must rest the defence upon a single point, and a plea containing two distinct points is bad. Goodrich v. Pendleton, 3 J. C. R. 384. The plea must, therefore, be overruled.

*323But,‘as there is a motion for a receiver, it is necessary, in order to dispose of that question, to decide whether either of the grounds taken by defendant would be a good defence, if properly pleaded.

To show that the execution was improperly returned unsatisfied, the plea states the following facts : 1st. That defendant now is, and that he was, when first sued at law, and from that time to the present has been, the owner of unincumbered real estate, situate in the county of Wayne, and other parts of the state, sufficient in value to pay the judgment. 2d. That after he had been sued at law, he called on plaintiff’s attorneys, who are solicitors in the present suit, and placed before them his title deeds to all of said real estate, except that part of it situated in Wayne county, and offered to turn out a sufficient quantity of it, to be selected by said attorneys, to pay the debt and costs, at a stated valuation, and informed them that he should continue to hold it, and that it would, at all times, be subject to any execution that might be issued on the judgment to'be rendered in said suit, and that he would, at any time, turn it out to be levied upon. 3d. That plaintiff’s attorneys were aware he had such real estate, both when the execution was issued, and when it was returned, and that they did not give the sheriff directions to levy on it. 4th. That defendant was not called on by the sheriff to pay the execution, or to turn out property on it; and that he was uninformed of the issuing of the execution, until the bill was filed.

These facts, conjointly, do not form a good defence to the bill. They show that the officer, in neglecting to call on defendent with the execution, did not do his duty; but they show nothing more. Complainant was not bound to go with the officer to defendant, or to point out property to be levied upon. He did all the law required of him, when *324he placed his execution in the hands of the sheriff, whose duty it was to make the money. If the sheriff has not done his duty, and defendant is injured, he'must look to the officer for redress. The negligence of the sheriff is no defence. The return to an execution is conclusive between the parties, when good upon its face, unless it has been made by collusion between the creditor and officer, or by the direction of the former. There would be no end to litigation in this class of cases, if this Court would go behind the officer’s return. It might, with as much propriety, go behind the judgment itself, and allow what had been adjudged at law to be litigated anew here, as to inquire into the regularity of the proceedings at law. In no case has this Court gone that length. If the officer improperly returned the execution unsatisfied, defendant should have applied to the Circuit Court, and had it set aside.— Stores v. Kelsey, 2 Paige R. 418; McElwain v. Willis, 9 Wend. R. 560, per Nelson J.; Sanford v. Sinclair, 8 Paige R. 373 ; Shottenkirk v. Wheeler, 3 J. C. R. 275.

All that the statute requires to give this Court jurisdiction, is a return of the execution unsatisfied, in whole or in part. In Smith v. Thompson, ante 1, the execution was returned before the return day. On that account it was held to be bad, as the defendant, after the return of the execution, and within its lifetime, might have had property to satisfy it. The return in that case was bad upon its face. In Williams v. Hubbard, ante 28, the execution was returned unsatisfied by direction of the plaintiff, as appeared by the return. The return was held insufficient, because it was not made on the responsibility of the officer, but by the direction of the plaintiff', who had a right to have his execution returned in that way, if he chose; and because the officer could not, in such a case, be sued for a false return. In Wharton v. Fitch, ante 143, the plain*325tiff’s attorney instructed the sheriff not to levy on land, and the officer returned the execution unsatisfied, although the defendant offered to turn out land to be levied on, when the sheriff called on him with the execution. Here was a collusion, or at least an understanding between the plaintiff’s attorney and the officer, not to make the money out of real estate. Nothing of this kind is set up by the defendant in his plea. There is no pretence that the officer was instructed not to levy on real estate, or to return the execution without searching for property to satisfy it, or calling on defendant to pay it. But defendant seeks to raise an equity in his favor out of the offer made by him, soon after he was sued at law, to turn out real estate in payment of the debt; and out of what took place at that time between him and complainant’s attorneys. This offer to pay the debt in land, at a stated valuation, did not change the rights of the parties, who then stood, and still stand, in the relation of debtor and creditor to each other. It imposed no legal or moral obligation on the creditor, to receive lands in payment of his debt; and, consequently, it cannot be the basis of a new equity or right between the parties. If defendanthad tendered money instead of land, the case would have been different; and he might have taken the money into Court, and pleaded the tender in bar of the further prosecution of the action. While defendant insists that it was the complainant’s duty to inform the officer defendant had lands within his bailiwick, and to point them out to be levied on, he seems to forget he was under a greater obligation to pay the judgment without waiting for an execution.

As to the alias execution, this case differs widely from Freeman v. Michigan State Bank, ante 62. In that case, within the lifetime of the execution, and while it was in the hands of the sheriff, the bank informed complainant it *326had sufficient unincumbered real estate, in Saginaw and Lapeer counties, to pay the judgment, and offered to turn it out to be levied on and sold, if complainant would send on alias execution into either of those counties. The value of the property was alleged to be sufficient to pay the judgment. Here, the. value of the property out of Wayne county is not stated. In that case, the Court said the complainant should have had his execution returned, and taken out an alias, directed to the sheriff' of the proper county, and that the execution, for that purpose, might have been returned in vacation, without waiting for the return day. The alias, therefore, might have been made returnable on the day the first execution was returnable, and, if sufficient money had not been made on it to satisfy the judgment, the complainant might still have filed his bill when he did. He would have sustained no delay in the collection of his debt.

The value of the property should be stated. The defendant might have lands in a dozen different counties, the whole of which would not be more than sufficient to pay the debt. This Court would not, in such a case, require plaintiff, before filing a bill, to take out a dozen successive executions, which would take six years, allowing a term for each execution ; and, by our existing laws, no two of the executions could be in the hands of different officers at the same time. Laws 1839, p. 24, § 6.

Plea overruled, and reference to a Master to appoint a receiver.