Porter v. Vanderlin

Opinion,

This appeal by the beneficial plaintiff is from the final order of the court, made in a proceeding commenced by the appellees, Egbert and Sheasley, under the ninth section of the act of April 22, 1856.

An execution against Vanderlin, defendant in the judgment, was levied on lands portions of which were acquired by said appellees after the lien of the judgment had attached. Being interested in protecting themselves against the consequences of a sale which would have divested their title, they presented a petition setting forth all the material facts, and praying for a rule on the plaintiff to show cause why he should not levy and sell lands which the defendant had not aliened at the date of his grant to petitioners, etc.; or, upon payment of the judgment by them, assign the same for such uses as the court *142might direct in accordance with the provisions of said act. That application was resisted by the beneficial plaintiff; but, when the court intimated that the rule to show cause should be granted, he insisted that it should be coupled with an order on the petitioners to pay into court the amount of his judgment, and thereupon the following was appended to the order granting the rule to show cause, viz.:

“ And the court order and direct that forthwith, and before the said rule to show cause shall take effect, the petitioners pay into court the amount of said judgment, together with the interest and costs thereon accrued, for the use of the said plaintiff upon his assigning the judgment to the petitioners, and that said plaintiff have leave to take the same out of court forthwith upon assigning the said judgment to the said petitioners.”

In obedience to this order, made at the instance of the appellant, the appellees paid the money into court; but, without assigning any sufficient reason therefor, appellant declined to assign the judgment or take the money out of court. The cause was afterwards heard upon the iDetition and answers, and thereupon the following final order was made:

“ November 8, 1890, the plaintiff, by his attorneys, having insisted.....that the petitioners, A. G. Egbert and George It. Sheasley, should be required to pay the amount of the judgment, together with the interest and costs thereon accrued, into court, . . . . ; and the court having made the order so insisted upon, and the said petitioners having complied with the said order by paying the said money into court for the use of the said plaintiff, it is now, upon consideration thereof, and of the petition and answers thereto, considered, adjudged, and decreed that the plaintiff, A. F. Hollister, assign the said judgment, together with the interest and costs thereon accrued, to the said petitioners, A. G. Egbert and George R. Sheasley, and to this extent the said rule to show cause is made absolute; the counsel for plaintiff admitting at argument that the petitioners have an interest in the land levied upon, and that the case comes within the ninth section of the act of April 22,1856.”

The order directing plaintiff to assign the judgment, and also the recital of admissions of counsel, were excepted to, and this appeal taken.

*143It is contended by the appellees that the legal effect of compliance with the order, made at the instance of the plaintiff, was satisfaction of his execution. The money was and still is within his grasp whenever he chooses to take it out of court. Whether the judgment should have been satisfied or transferred to those who were equitably entitled to subrogation, was a question for the court, and not for the plaintiff. In the absence of evidence tending to show anything to the contrary, it must be assumed that the only legitimate o.bject the plaintiff could have had in levying on the land in portions of which appellees had acquired an interest, was the collection of his debt. If he had any other lawful purpose to subserve, it was incumbent on him to show it. As a condition precedent to the intervention of appellees for the protection of their interest in the land, he insisted on their being required to pay into court the full amount of his claim. An order to that effect was accordingly made and promptly complied with. The money paid into court, at the instance of the plaintiff and for his use, represented his entire claim; and, while it was not actually paid to him in person, the transaction was tantamount to payment.' It was there for him to take whenever he chose to receive it. It is not even alleged that, by virtue of the judgment, he had or could have any further claim against the defendant therein, or any one else. In view of the undisputed facts, and independently of the provisions of the act insisted on by appellant, the final decree requiring him to assign the judgment was the logical sequence of the position in which he voluntarily placed himself by successfully demanding that the full amount of his claim should be paid into court. The assignments of error are not sustained.

Decree affirmed, and appeal dismissed, with costs to be paid by appellant.