
    Abraham Hammatt versus Hezekiah Wyman and Benjamin Davenport.
    Where one of two judgment debtors paid to the creditor’s attorney the amount of the judgment, taking his receipt and discharge therefor, but the payment was not endorsed on the execution, it was held that the execution could not after-wards be served on the other debtor, for' his moiety of the debt, for the benefit of him who had made the payment
    It is necessary to a valid title to goods purchased at a sheriff’s sale on execution, that the sheriff make a due and legal return of the execution. [And where no return was made, nor bill of sale, nor delivery of the goods, nor receipt for the purchase, nor credit given to the debtor, in whose possession the goods were suffered to remain, mixed with his other goods, without any distinguishing mark, held, the circumstances together were conclusive evidence of fraud. — Ed.]
    This was an action of trespass, for taking and carrying away sundry goods and chattels of the plaintiff.
    The defendants filed a brief statement, pursuant to the statute of 1792, c. 41, in which Davenport sets forth a justification as a deputy sheriff, under an execution in favor of one Abraham Barker against Enoch Jones and Josiah Noyes, alleging the said goods to have been the property oi the said Enoch Jones, and a justification of the defendant Wyman, as servant and assistant to him, the said Davenport.
    
    The action was tried upon the general issue joined, at the last September term in this county, before Thatcher, J.; from whose report of the trial the following appear to be the material facts, on which the action was supposed to be maintained.
    In December, 1808, a suit was commenced by one John Peterson against the plaintiff Hammatt and the said Enoch Jones, on a joint bond given by them to secure a sum of money which they mutually owed to Peterson. Judgment being rendered in that suit against Hammatt and Jones in August, 1809, execution issued thereon on the 14th of September following, which was delivered to the defendant Wyman, also a deputy sheriff, to be by him served. Wyman soon after redelivered the execution to Mr. Ames, the attorney of Peterson, informing him that Hammatt * would soon call and settle it; and Hammatt did, in fact, settle the execution with Ames, by paying the amount of the judgment and fees. But instead of having a discharge entered upon the execution, which Ames was about to do, he, at the request of Hammatt, (who stated that he wanted the execution, in order to raise by it out of Jones’s effects one half of the debt,) gave Hammatt a separate receipt, purporting that he had received the sum paid, in full satisfaction of the execution. Hammatt then delivered the execution to Wyman, and directed him to seize and sell the household furniture of James, which was accordingly done by Wyman, the regular steps having been taken to notify the sale; and Hammatt was the purchaser of the articles for which the present action is brought. No return was made by Wyman of this sale upon the execution; no bill of sale was given, nor any delivery of the goods to Hammatt; but the same remained in the possession of Jones, (who acted as clerk at the auction,) and were intermixed, without any distinguishing mark, among other furniture of Jones’s. No receipt was ever given by Hammatt for the purchase, nor any credit in any way passed to Jones. After this, the first-mentioned execution against Jones in favor of Barker, was put into Wyman’s hands, who delivered it to Davenport, the other defendant, by virtue of which the same articles of furniture, being still in Jones’s possession, were seized and sold; and for this taking the present action was brought against the two defendants.
    The judge instructed the jury that, if they were satisfied such was ♦he meaning and understanding of the parties to the transaction, they might consider the payment of the money by Hammatt to Ames as an advance made on account of Jones’s moiety of the judgment, which was not to avail to vacate the execution, as to such moiety, but that as to it Wyman was still to proceed to sell Jones’s gooas in virtue of the execution, it was lawful for Wyman to sell as he did; that the sale was legal, and vested the property in the vendee, although the officer had not made a particular return of the sale; or, if otherwise, that it * did not lie in the mouth of Wyman to impeach his own sale on that ground; that the continued possession of the goods by Jones was evidence of fraud to those only who did not know the real state of the property; and the lending them by Hammatt to Jones, unless they were to be holden at the will of the borrower, was not such a fraudulent act as the creditors of Jones might avail themselves of.
    The defendant’s counsel excepted to the directions of the judge; and a verdict being returned for the plaintiff, the action stood continued to this term, for the consideration of the exceptions.
    
      Mellen and Orr,
    
    for the defendants, contended that the sale of the goods in question by Wyman, was void for want of authority in him, and as it was a fraud against Barker, the creditor, who after-wards caused them to be regularly seized and sold on his execution.
    The execution against Hammatt and Jones, under which the first pretended sale was made, was completely paid and satisfied by the payment of the amount of the judgment by the plaintiff to Mr. Arnes, the creditor’s attorney. Nor is it of any importance, in this view of the subject, that the payment was made wholly by one of the judgment debtors ; for a release of one of several joint debtors on a judgment is a release of all; so the escape of one in execution, and satisfaction made by the sheriff, or a discharge by the creditor of one in execution, without satisfaction, shall operate as a release to the other. 
    
    The sale was also void on the ground of fraud, to which the plaintiff was a party. There was neither a consideration paid, nor a delivery made, nor possession taken of any part of the goods At common law, possession, either actual or constructive, is essential to maintain trespass. An imperfect seizure of goods on a fieri facias, which is in full force, with a view of accommodation to the judgment debtor, is a fraud against creditors. 
    
    As to any understanding or agreement between the parties to the transaction, if any such existed, it was not until after the exe cution was satisfied by Hammatt.
    
    
      * Wilde for the plaintiff.
    The defendant Wyman’s conduct was grossly fraudulent, as it respected the plaintiff. He refrains from making a proper return of the first execution, on which the plaintiff’s title was to depend; and then procures another execution to be levied on the very goods he had before legally and bond fide sold to the plaintiff. The money paid by the plaintiff to Ames was neither paid, nor received; as a dis charge of the execution; but was advanced expressly and solely on the condition that the plaintiff should still have the benefit of the execution, to enforce upon Jones the payment of his half. This was perfectly legal in one party and the other. The possession of the goods by Jones, after the sale, was perhaps prima facie evidence of fraud; but it was controllable by other evidence, as is all other prima facie evidence.
    The action being continued nisi, the opinion of the Court was delivered in Boston, at an adjournment of the last March term in Suffolk, by
    
      
      
        Com. Dig. Aud. Quer. A. — Pleader. 2 W. 30.— Bac. Abr. Fraud, A — Co. Lit 125.— Cro Jac. 134.— 6 D. & E. 525.
    
    
      
       1 Wils. 34.-4 D. & E. 489.
    
   Parker, J.

The first question, which arose in the trial of this cause, respected the evidence of the plaintiffs title, he claiming by virtue of a sale under an execution; but producing no evidence of such sale, except by paroi proof of the doings of the officer. This objection was overruled at the trial; but, upon consideration, the Court is of opinion that it ought to have prevailed; that the property did not pass to Hammatt, so as to enable him to maintain trespass against the officer; for that a written return by the officer, stating particularly his proceedings, is necessary to vest in any purchaser under an execution, a property in the goods of the debtor. If the sale were otherwise valid, the proper remedy of the purchaser is by an action of the case against the officer, for failing to make his return; but he cannot make title to the goods, without showing, by the return of the execution, that the directions of the law have been observed in the sale,

But there is another objection, which goes more directly to the plaintiff’s claim in this action ; and that is, * that on the payment by Hammatt, a joint debtor in the execution, and liable to pay the whole, the execution was discharged, and the judgment satisfied, notwithstanding an entry of satisfaction was not made upon the execution. Peterson, the creditor, had received all his money : he could not afterwards have legally caused the execution to be levied; nor could he have authorized Hammatt to have it done, he being a party to it, and obliged to pay it. The judgment was satisfied by this payment; and, if a suit had been brought upon it, the receipt given by Ames would have been perfect evidence of payment. The execution was functus officio. Wyman was therefore right in considering the sale to Hammatt as void, and in making no return upon the execution.

The only way attempted to get rid of this difficulty was, to con sider the payment of the money by Hammatt as no payment, with respect to one moiety of the debt, which it was supposed Jones ought to have paid. And the jury were permitted to make that distinction, and upon it found their verdict for the plaintiff.

But there was no room for such distinction. One of the judg ment debtors paid the whole execution, and this gave him a right of action against his fellow-debtor, but did not keep alive the execution for his benefit.

We are of opinion, also, that the circumstances attending this sale clearly show a trust and confidence between Hammatt and Jones, which would avoid the sale as to any bona fide creditor; and that the verdict, as to this point, is altogether against evidence, there being nothing in the case tending in any degree to abate the violent presumption, arising from the loose nature of the transaction, that the whole was for the benefit of Jones, and that no change of property between him and Hammatt was intended to take place,

The opinion of the Court therefore is, that the verdict be set aside, and a new trial granted. 
      
      
         [In Ladd vs. Blunt, (4 Mass. Rep. 402,) Parsons, C. J., seems to have considered a sale of goods upon execution as valid, even in case the officer should neglect to make any return upon the execution. And in Howe vs. Starkweather, (17 Mass. Rep. 243,) Parker. C. J., on the authority of Titcomb vs. The Union Marine Fire Ins. Co., (8 Mass. Rep. 335,) said, “ Generally a purchaser of chattels at a sheriff’s sale, having received the goods and paid for them, would have the property, notwithstanding any irregularity of the officer making the sale. Purchases would not be made, and the interests of debtor and creditor would suffer, if sales made by one having lawful authority, and appearing to have exercised it lawfully, should be avoided on account of some irregularity, which could not be known at the time.” But he added, “ Even in such cases, however, the return of the officer ought to show a compliance with the law, or the purchaser would be unable to maintain his property.” Why would not as great, or even greater, inconvenience and mischief result from holding all sales to be a nullity, where the officer should neglect to malte a return in due form upon the execution ? In Ingersol vs. Sawyer, (Pick. 276,) the Court express a doubt whether, even in the case of a sale of an equity of redemption, the purchaser might not maintain a title under the sale, even without any return whatever. In Jackson, ex Dem.. Kane, vs. Sternbergh, (1 J. C 153,) it is held that the title of the purchaser will not be affected by an incorrect return to a fieri facias. In Farne vs. Hamilton, (1 Bay, 10,) it was held that a sale of lands was valid, though no return was made of the execution. And, in Evans vs. Rogers, (2 Nott & M' Cord, 563,) it was held that the title need not be evidence by a return. — Ed.]
     
      
      
         [Vide Reed vs. Pruyn, 7 Johns. Rep. 426. — Ed.]
     
      
       [According to more recent decisions, this matter was exclusively within the province of the jury, who upheld the sale. — Reed vs. Wilmot, 7 Bing. 503. — Latimer vs. Batson, 4 B. Cr. 653 —Martindale vs. Booth, 3 B Ald. 507.—And see cases cited "n a note in Rand's ed. Long on Sales, p. 115. — Ed.]
     