
    Tucker and Phelps vs. Pruett.
    A was ihe first, and C the last endorser of a note made by D. The holder of the note sued the maker and all the endorsers jointly, andob-tained judgment against them all. An execution on this judgment was levied on a slave as the property of the maker. C, the last endorser, indemnified the sheriff, and he sold the property in satisfaction of the judgment. The sheriff was sued by the real owner of the slave, who recovered a judgment against him. The sheriff then obtained a judgment against C upon the bond of indemnity: C paid it, and then sued A and B: Held, that he was entitled to recover.
    This is an action of assumpsit brought by Pruett, in the county court of Lincoln, against Tucker. The declaration contains several counts. In the first count, Pruett declared against Tucker as the first endorser of a certain promissory note. The others are the common counts for money paid, lent, &c. The defendant below pleaded non-assumpsit; a verdict and judgment were rendered for Pru-ett. Tucker ¿ppealed to the circuit court, and Phelps became his security in said appeal. There was a verdict and judgment also in the circuit court for Pruett, and an appeal in the nature of a writ of error to this court by Tucker and Phelps.
    The bill of exceptions shows, that one Smith and one Stiles made their note, under seal, for four hundred dollars, payable twelve months after date, and dated 11th October, 1828, payable to the said Tucker, who endorsed it and delivered it to said Pruett, who afterwards endorsed and delivered it to Baxter and Hicks. It was not paid when it became due, and was regularly protested, and all the endorsers duly notified of its dishonor. Afterwards Baxter and Hicks brought a joint action of debt against the two makers, Smith and Stiles, and the two endorsers, Pruett and Tucker, and obtained a joint judgment against all of them. An execution was issued; and the sheriff levied the same on a negro man, Champ, then supposed to be the property of Smith, one_ of the makers of the note. On the day of the sale, one Harrington came and ^or^a(^e ^ sa^-e5 and claimed the negro as his property. The sheriff then refused to sell, unless indemnified, and as no one else would do so, Pruett gave a bond of indemnity: the negro was sold for the sum of four hundred and one dollars, which sum was applied to the payment of the said execution.. There however still remained a balance'of thirty four dollars due on the execution, which sum Pruett paid, and thereupon the execution was returned satisfied- Subsequently, Harrington, the man who claimed the negro, sued the sheriff, and having established the fact that the slave belonged to him, and not to Smith, he obtained a judgment against the sheriff for the value of the negro; and afterwards, the said sheriff took a judgment against Pruett on his bond of indemnity, which judgment Pruett paid; he then brought the suit against Tucker, the first endorser of the note, and one of his co-defendants in the judgment of Baxter and Hicks.
    The circuit judge charged, “That as the sheriff would not sell the property of Smith, the maker of the note, until Pruett had indemnified him, and that as the sheriff was sued for selling the property levied on, and a recovery had, and then a recovery over against Pruett by the sheriff op the indemnifying bond, that these things were equivalent to the payment of the judgment by Pruett; and that Pruett would have the same right to sue Tucker on his endorsement, as if he had paid the debt himself without the sale of Smith’s property; that the payment to the sheriff on the indemnifying bond was equivalent to a payment to him on the execution, and would entitle •Pruett to every remedy he had and could have enjoyed, if he had paid the debt on the execution in the first instance.”
    
      Bramlitt, for plaintiffs in error.
    If an execution be levied on property sufficient to satisfy the debt, the debtor is discharged; though the execution be not returned.- 4 Mass. Rep. 402, Ladd vs. Blount. A deputy sheriff having a fi. fa. in his hands, agreed with the defendant in the execution to delay the sale and to join with him in making a note on which money should be raised and applied to the satisfaction of the execution, provided he should be permitted to keep the execution alive; and if he should be called on to pay the note, he then would use the execution for his own indemnity, and he so informed the plaintiff’s agent in the execution when he paid the money, and took a separate receipt for the same, and did not credit the execution; and afterwards, he being called on to pay the note, sold the defendant’s property under the execution; but the court decided that the payment of the money was -a satisfaction of the debt. Shearman vs. Boyce, 15 John. Rep. 443.
    The case of Weller vs. Woodsale, (Noy. 107,) decided if the sheriff pay the money out of his funds, he cannot af-terwards detain the goods of the debtor on the fi. fa. to secure his own indemnity. The same doctrine is established in Reed vs. Pruyn, 7 John. Rep. 426. The same point was decided by this court in Whitcomb vs. Reed, 3 Yerger’s Rep. 297.
    If I have established the foregoing position, let us next see what effect a sheriff’s sale of property will have on the legal rights of the rightful owner. Can the levy and sale ever divest him of his"property. Let the case of Henderson vs. Overton, reported in 2 Yerger’s Rep. 394, decide the question. There this court have decided that even in real property there is no warranty either expressed or implied, either by the sheriff or the defendant in the execution. But in all sheriff’s sales, the doctrine of caveat emptor, in all its latitude, applies. When the note was put in suit against all the parties thereto, both principals and endorsers, and a joint judgment recovered thereon in favor of Baxter and Hicks, that judgment destroyed all legal remedies on the note, and the judgment then became the foundation of all proceedings against them, or any of them, and all other remedies were absorbed in the judgment, and no longer depending on the note, either against the principals or endorsers. When an execution issued thereon and came to the hands of the sheriff, he was bound at his peril to levy on the property of defendants. When he levied on property of any of the defendants and sold the same, that sale, by ■ operation of law, extinguished so much of the debt as the property sold for; and though he waste it, or fail to return the execution, yet so far as the defendants were concerned, the debt is extinguished, pro tanto. I use the words, sale of the property, because, by the act of Assembly of 1825, ch. 40, sec. 2, page 94 of Cobbs and Haywood’s Revisal, “no sheriff, &c. shall be compelled to levy an execution on any property, the title to which is disputed, and sell the same, unless the plaintiff in the execution' will first give bond and security to such sheriff, &c. to indemnify and keep harmless such officer from all damages and costs in consequence of levying upon and selling such property.” Suppose the plaintiffs in this case, to wit, Baxter and Hicks, had indemnified as contemplated by the statute, and the negro, Champ, had been sold; would not the price have been credited on the execution, and would not such credit have enured to the benefit of all the defendants in the^execution. The money would have been handed over to Baxter and Hicks, the execution credited, and so far as it went, there is a satisfaction of the judgment; still, there is no warranty of title, and it must be conceded that Harrington, the real owner, is not thereby prevented from suing the purchasers, or the sheriff, or the person who indemnified, or all, at his election. How then can it differ the case, if one of the defendants (as in this case,) should step forward and voluntarily choose to place himself in the place of the plaintiffs; will he thereby occupy a more favorable attitude than would the plaintiffs ? It is believed not. Suppose at the sheriff’s sale ■ the plaintiffs had been the purchaser; could not the owner have sued him in trover or detinue, and have recovered? Yet the execution having been satis- „ , , , ,, , . , ° , fied, he could have no remedy against the sherili or defendants; it is the legal consequences of his own. act. As to the $34, that is wholly aside from the main question. I therefore think the judgment ought to be reversed.
    
      T. H. Fletcher, for the defendant in error.
    There is certainly nothing erroneous in this charge. Tucker and Phelps contend, that if an execution be levied upon property sufficient to satisfy the execution, that the judgment debtors are all discharged. I need not deny this position. It has no application to this case. It discharges all from all farther liability to Baxter and Hicks; but it does not discharge one joint defendant from the cause of action which arises to another, whose property or money is exclusively taken or used in the payment of the judgment. Besides, • in this case it turned out that the sheriff never had levied on any property belonging to either of the defendants.
    Tucker and Phelps also contend, that when an execution is once paid, no matter by what means, it expires; and both it and the judgment cease to have any farther operation. This is not disputed. It' is admitted that Baxter and Hicks’judgment is satisfied. Pruett does not proceed on that judgment. He contends that he satisfied it; and hence arises his claim against Tucker.
    Tucker and Phelps also contend, that when Baxter and Hicks obtained judgment against all the parties to the note, that that judgment destroyed all the remedies which any one of the parties previously had against the other. This is not correct. Tucker was the first endorser and Pruett the second; consequently, Tucker was liable to Pruett, and whenever Pruett paid the holder of the note, he was entitled to his action against Tucker, and it matters not whether he paid it before or after judgment.
    It is objected that Pruett indemnified the sheriff, &c. Of this Tucker should not complain. He could not be injured, and might have been benefited. The sheriff refused to sell without indemnity, and he was not bound to sell unless he was indemnified. The evidence says he refused to sell. Pruett incurred the responsibility of indemnifying; and had the slave proved to be the property of Smith, then Tucker would have had as much benefit from the indemnity as Pruett, without any risk. But as the negro turned out not to be the property of Smith, and as Pruett.had to pay his value, then Tucker’s original liability to Pruett, as first endorser, stood as it did at first. Pruett was not an intruder in the indemnification. He was a party interested, and might indemnify. If he had no right to indemnify, or if the statute does not authorize it, then, as he by that act caused the money to be paid, it may be considered that he paid the execution out of his own funds in the first place.
    It is admitted by Pruett, that if Baxter and Hicks’ judgment was paid by Smith, or by the sale of .property which was Smith’s, that Pruett could have no cause of action against Tucker. But Baxter and Hicks’ execution was not satisfied, either by the money or property of Smith. As the negro proved not to be his, then, in fact, it was not paid by him. The question in this case is, not whether the judgment of Baxter and Hicks has been paid, but by whom it was paid. Not by Smith, for the negro was not his. Not by Tucker, for not one cent of his property or money have gone that way. But by Pruett, who has paid four hundred and thirty five dollars in cash.
    It is admitted, that when the' holder of a note gets either a joint or separate judgment against the maker and several endorsers of a note, that a payment by any one of the parties satisfies the judgment or judgments. See Chilty on Bills, 443. But this rule merely declares that Baxter and Hicks cannot maintain any farther proceedings against either of the parties. It. does not mean that that defendant who pays the iudgment shall not have his action over against those who were originally liable.
    The judgment of Baxter and Hicks cannot be pleaded in bar of this action. Nor, because that judgment was satisfied, does that defeat Pruett’s claim. See 4 Durn-ford and East, 825: 3 East, 251: Chitty on Bills, 385, note (6,) 441.
    The second endorser may pay the note, and then sue and recover of the first. Peck’s Reports, 268. Then Tucker being the first endorser, was of course liable to Pruett. How can he claim exemption from that liability unless either he or Smith has paid the money. The rendition of a joint judgment against all concerned, does not release him, unless he or the principal has paid it.
    The case in 4 Term Reports, 825, shows that the mere nominal satisfaction of a judgment does not estop others whose cause of action arose after that. In this case Pru-ett’s cause of action never arose until he paid the money.
   Peck, J.

delivered the opinion of the court.

This case turns upon the view taken of it by the circuit judge, in his charge to the jury, “That as the sheriff would not sell the property of Smith,' the maker of the note, until Pruett had indemnified him; and that, as the sheriff was sued fqr selling the property levied on, and a recovery had, and then a recovery against Pruett by the sheriff on the indemnifying bond; that these things were equivalent to payment of the judgment by Pruett: that Pruett would have the same right to sue Tucker on his endorsement, as if he had paid the debt himself without the sale of Smith’s property: that the payment to the sheriff on the indemnifying bond, was equivalent to a payment to him on the execution, and would entitle Pru-ett to every remedy he had and could have enjoyed, if he had paid the debt on the execution in the first instance.”

We are of opinion that this charge is unexceptionable. It is said that property enough had been seized to satisfy , • r -r. , TT. t i • • i ^ j the execution ot Baxter and Hicks; admit it, and the aa-mission will not stand in the way of a recovery on the evidence and law of this case. Make the most of the levy and subsequent sale, and it was an experiment su-perinduced by Pruett for the benefit of the endorsers. The sheriff was not bound to levy or sell, until indemnified. Act of 1825, ch. 40, sec. 1, 2. We are not therefore to consider a levy made upon disputed property, and which turns out not to be the property of the debtor in execution, as a satisfaction to operate every where, and between all parties, no matter how they stand in relation to each other. We must look farther; and surely, when we see that Pruett, to save all the endorsers, has thrown himself in peril, we will not allow to those whose interest he was serving, a technical exception which the circumstances show would operate a great injustice, by throwing all the burthen upon him who acted promptly and in good faith. Strip the case of this guise, and consider Pruett as paying the judgment, and then liabilities are restored as they stood by the order of the respective endorsements. Even admit, as contended, that the judgment of Baxter and Hicks is satisfied, and that further proceedings on that judgment cannot be had, still, the argument proves nothing in this action which is not founded on the judgment, but on the consequences which flow from it. Tucker was first endorser; Pruett the second. The first being liable to the latter, all the circumstances must be looked to, to see if the liability continues. So long as Pruett was liable for this money,' Tucker stood liable to indemnify, and it cannot be material to Tucker how Pruett raised the fund that paid the debt; it is enough to say he did raise it out of his own funds, not out of the property of the maker of the note.

Judgment affirmed,  