Carpenter v. Stilwell & Ambrose , 12 Barb. 128 ( 1851 )

By the Court,

Babctjlo, J.

The justice of the case is plainly with the defendants ; and this should always prevail, unless a positive rule of law intervenes.

In this case we are unable to discover any imperative legal principle which interferes with the due course of natural justice. The authorities cited on the part of the plaintiff are easily distinguishable from the present case, both in letter and spirit. They arc, for the most part, cases in which a direct application was made to the court where the original judgment was, for relief from the improper or oppressive conduct of the sheriff. Thus in Reed v. Pruyn and Staats, (7 John. 426,) the defendant moved to set aside an execution by which the officer, after two years’ delay, was proceeding to enforce the payment of money advanced by him in payment of the judgment. The court very properly set aside the execution. In Mills v. Young, (23 Wend. 314,) the court held that an officer who had obtained a note from the defendant by threatening to sell his property under an execution, when, at the time of the threat, the officer owned the judgment, but concealed that fact from the defendant, could not recover upon such note, it having been obtained by fraud and undue coercion. The case of Bigelow v. Provost, (5 Hill, 566,) is one in which it was held that a sheriff, who had been attached for not returning an execution, and had paid the judgment and taken an assignment of it for his own benefit, could not enforce the collection of the judgment by execution; and the execution was accordingly set aside.

The great distinction between those cases and the present is, that in the former the controversy was between the judgment debtor and the officer, and in the latter it is between the judgment debtor and a bona fide purchaser. We assent fully to the doctrine of those cases, and consider it a salutary rule that when the sheriff has neglected or violated his duty so as to be required to pay the plaintiff, he ought not to be permitted to use the judgment for his own benefit, except under peculiar circumstances, and by express leave of the court. .And if it be true, in the principal case, that the money paid to satisfy the plaintiff’s demands upon the judgments, was the money of the sheriff, and paid in pursuance of the order of the 15th of May, 1847, it would have been in accordance with sound principles of public policy for the court, upon a proper application being made, prior to the sale, to have set aside the execution, and, perhaps, canceled the judgment. This, however, it seems has not been done; but the judgment debtor has lain still for nearly two years after the sale, until the premises have been redeemed, on the payment of a large sum of money; and now claims as against the redeeming creditor, the application of a rigid rule, which is only applicable to public officers, as a punishment for their neglect of duty.

The case of Sherman v. Boyce, (15 John. 443,) is also relied on by the plaintiff’s counsel. That was an action of trespass brought by the judgment debtor against a deputy sheriff, who had sold the horses of the debtor, after the judgment had been paid by money raised upon a note made by the officer and debtor for that purpose, with the understanding that the officer should retain the execution for his indemnity. The court held that the payment to the judgment creditor not being a conditional payment, was a satisfaction of the judgment; and therefore the execution was spent, and could not be used by the officer to enforce his own agreement with the debtor ; such agreement being also illegal, and tending to oppression; and that the defendant in the execution might maintain an action of trespass against the officer, for the property taken and sold by him. This differs from the former cases cited, inasmuch as this was an action brought after a sale ; but it was an action brought against the ' deputy sheriff, who was a party to the illegal transaction, and not against an innocent purchaser; in which respect it is distinguishable from the case before us.

We think the court below fell into the error of supposing that the payment of the fine operated, per se, as an extinguishment of the judgment. This was not so, either by the terms of the order or its legal effect. The fine was, on its face, a punishment of the sheriff. As to the creditor, it might well be deemed a payment; because he thereby obtained the amount of his demand ; but as to the debtor, who had paid nothing, the imposition of the fine could not, ipso facto, discharge him from his liability. It was left for the court to determine the effect. The court might have, at the time of imposing the fine, or subsequently, directed the canceling of the judgment; or it might have directed the judgment to be kept alive for' the indemnity of the sheriff, in the exercise of its equitable powers, in analogy to the familiar rule of courts of equity, by -which liens are kept alive to promote the ends of justice. The payment is not strictly a payment and satisfaction of the judgment, out of the debtor’s property. The plaintiff’s counsel only claim a technical satisfaction—a satisfaction by operation of a severe rule of law, which is to be administered by the courts according to circumstances, and which is now invoked as a mere unbending legal rule, in a case entirely destitute of any appearance of equity or justice. We can not say that this judgment was extinguished; wre can not say that it would, or ought to have been, canceled upon a proper application; or whether the sheriff might have shown that his neglect was occasioned by the importunities and devices of the debtor, so as to entitle himself to the benefit of the judgment, as between them. So far as the case shows any thing on this subject, it shows that the court refused to interfere and prevent the sale; but upon what grounds does not appear.

II. But if we should be wrong in this, there is another error which we deem sufficient to send this case back. The judge refused to charge, “ that if the jury believed that Carpenter knew that Coddington had received the money, and the judgments had been assigned, and that the property wras advertised to be sold, and then endeavored to have the sale deferred, and did not give any notice to the purchaser, at the time of the sale, he is to be deemed as having acquiesced in the right to sell, and is estopped from setting up that there was no right or authority to sell.” This involves the doctrine of estoppels in pais; the application of which must depend “ upon the circumstances of the case,” according to the remarks of the court in The Welland Canal Company v. Hathaway, (8 Wend. 483.) By the rule laid down by Justice Bronson in Dezell v. Odell, (3 Hill, 221, 222,) “before the party is concluded it must appear, 1. That he has made an admission which is clearly inconsistent with the evidence he proposes to give, or the title or claim which he proposes to set up ; 2. That the other party has acted upon 'thebu/M||sion; and 3. That he will be injured by allowing the truth nFthe admission to be disproved.” Tested by this rule, we think that the facts of the case which were proposed to be submitted to the jury as the basis of an estoppel, ought to have been so submitted. The judgment remained open upon record; the sheriff advertised the property to be sold under an execution issued thereon;, Carpenter knew these facts, and was, according to the testimony of Mr. Waring, frequently at the sheriff’s office after the advertisement, endeavoring to arrange the matter and get the sale deferred; he permitted the sale to take place without remonstrance or notice to the purchaser, on the 15th December, 1847; and suffered the defendant Stilwell, fifteen months thereafter, to redeem the premises in question, and take the sheriff’s deed, without apprising him of any of the facts upon which he now claims that the sale was void. These facts fulfill the conditions of the rule. The conduct of Carpenter Avas inconsistent with his present pretense, that the sheriff had no authority to sell. It Avas equivalent to an admission of the validity of the execution, and may be likened to that class of cases Avhere “ standing by in silence and seeing a chose in action assigned for a valuable consideration, has been deemed an estoppel in pais against a debt- or.” (Watson’s Executors v. McLaren, 19 Wend. 563, and cases there cited.) Nor does there seem to be any reasonable doubt that'Stilwell acted upon such admission; and will be injured by allowing it now to be disproved. We think, therefore, that the law permits, and that justice requires, that Carpenter should be estopped from denying the validity of the sale, and that the jury should have been- charged, in that respect, as required by the defendants’ counsel.

[Kings General Term, October 6, 1851.

Judgment reversed, and new trial ordered.

Morse, Barculo and Brown, Justices.]