
    Peck vs. Tiffany.
    Where a sheriff levies an execution upon sufficient property to satisfy it, and through his negligence or misconduct the property is lost, destroyed, or disposed of, so that the defendant is deprived of the benefit thereof, it is satisfaction of the debt, and the plaintiff must seek his remedy against the officer.
    But where the debtor has neither paid the debt nor been deprived of his property, a levy is not a satisfaction. So held, when an alias fi. fa. had been levied on sufficient property to satisfy it, but the property was not all sold or removed, and afterwards a pluries fi. fa. was issued for the residue.
    
    A sheriff's levy under an execution enures also as a levy upon other executions which afterwards come to his hands; and the rule is the same, although at the time the junior execution is received the senior one has become dormant by reason of instructions for delay.
    A levy under an execution remains good against the debtor, although the process becomes dormant as to junior executions; and the sheriff under such levy has the custody and control of the property.
    Where a sheriff sells property for the purpose of satisfying an execution in his hands, and afterwards discovers that a prior execution is entitled to the whole or a part of the moneys raised, he may at any time before making his return apply the moneys accordingly.
    An execution in favor of A. came to the sheriff’s hands, under which he levied upon the debtor’s property, and raised by a sale thereof, as he then supposed, a sum sufficient to satisfy the judgment. There were two prior, executions against the same debtor, the eldest of which had been levied on the same property. The other one was never actually levied, and when it came to the sheriff’s hands the eldest one had become dormant by reason of instructions to the sheriff for delay. Held, that the second execution was constmctively levied in virtue of the levy under the first, and that the sheriff had a right to apply, on such second execution enough of the proceeds of the sale to satisfy it: and held further, that another execution in favor of A. subsequently issued to collect the residue, was regular.
    Where property is levied upon and sold under a junior execution, before a senior execution is levied, it cannot under the statute (2 S. S. 366, § 14,) be levied upon or sold by virtue of the senior execution; but it seems that in such a case the senior execution is entitled to be first paid out of the proceeds of the sale.
    When any sum whatever i' due upon a judgment, it seems an execution will not be void although it be issued for too much. It may be amended, or set aside on ■ motion. If that be not done, and a sale take place, the sale will be wrongful for any amount beyond the sum actually due.
    
      Appeal from the supreme court, where Philip Peck, Jun., brought trover against William Tiffany, for the taking of a quantity of hay, oats and other personal property. On the trial before Shankland, J. at the Chenango circuit, in April, 1848, the plaintiff proved that *he owned the property in question, that it was levied upon and sold by direction of the defendant, and then, after proving its value, rested.
    The defendant, to justify the taking, proved a judgment in favor of the Chenango Bank against the plaintiff for $724,98, rendered March 20, 1844 ; an alias fi. fa. issued thereon to the sheriff" of Chenango county, on the 20th of April, 1844, on which the sheriff returned that he had made $602,39, on the 12th and 15th days of July, 1844, by a sale of the property of the defendant therein, and nulla bona as to the residue: a pluries fi. fa. on said judgment issued on the 27th of October, 1845, for the sum of $138,72, being such residue; and that the taking and sale complained of was under the last mentioned process. The property was sold for trifling sums amounting to only $7,25. On this justification the defendant rested.
    To avoid this justification the plaintiff proved, after an objection to the evidence had been made and overruled, that when the sales on the alias fi. fa. above mentioned took place, the deputy sheriff, who held the writ and conducted the sales, declared that he had sold enough to satisfy the execution. It also appeared, that the alias fi. fa. had been levied upon other property which was not sold, but there was no evidence to show that it was ever removed or taken from the possession of the defendant in the execution. The plaintiff then again rested.
    To sustain his justification the defendant then proved, that on the 20th of February, 1844, one Cozens and another recovered judgment against the plaintiff for $9600, of debt, and $13,01 costs; that execution thereon was issued April 10, 1844, and May 4, 1844, was levied upon the same property which, as before stated, was levied upon and sold under the alias fi. fa. of the Chenango Bank on the 12th and 15th days of July. The evidence tended to show that when this sale took place the execution of Cozens had become dormant, by reason of instructions given to the officer who held it not to advertise or sell thereon. The defendant also proved, that on the 20th of February, 1844, one Phillips recovered judgment against Peck and Tiffany (the plaintiff and defendant,) for $124,97; that execution thereon was issued April 4, 1844, and levied upon property oí Tiffany sufficient to satisfy it, on the 1st of June, 1844. „ But this execution was never actually levied on the property of Peck.
    
    The deputy who made the above sales on the alias fi. fa. in favor of the Chenango Bank, being called as a witness for the plaintiff, testified that the amount of sales under that writ on the 12th and 15th days of July, 1844, was $749,70; that he intended to sell enough, and at the time supposed that he did sell enough to satisfy that execution, but in fact it lacked $6,39 after reckoning his fees: He further testified that the reason why he did not immediately return the bank execution satisfied was, that for some five or six days after the sale, he was absent from the county; that some time after the sale he was directed by the attorney who controlled the bank judgment, to apply $131,99 of the sales aforesaid on the execution in favor of Phillips. This he accordingly did; and, after making this application, it left only $602,39 of the sales to apply on the alias fi. fa. upon the bank judgment. The amount due on that alias was $756,09. It appeared that the defendant Tiffany was present at the sales on the 12th and 15th of July, and was the owner of the bank judgment; also that in June, 1844, Phillips assigned his judgment to Albert Tiffany, the defendant’s son.
    The evidence being closed,' the defendant’s counsel requested the judge to charge. (1.) That as it appeared something was due on the bank judgment when the pluries fi. fa. was issued, the action would not lie for the taking and sale of the property in question ; rnd that the remedy of the plaintiff would be -by motion to set aside the execution (2.) That as the execution of Cozens had been levied on the property of the plaintiff, that levy enured to the benefit of the Phillips execution, the moment when it came into the hands of the sheriff, and that this was so, although the Cozens execution after the levy hecame dormant. (3.) That therefore the Phillips execution being piior to that of the bank, was entitled to be first paid out of the moneys raised by the sales on the 12th and 15th of July, 1844, and hence that the application of a part of the money to that purpose was proper.
    The judge charged, that if the property of the plaintiff levied apon under the alias fi. fa. upon the bank judgment, was sufficient to satisfy it, and would on sale produce enough for that purpose, the execution was in judgment of law satisfied, although the property was relinquished, unless the sale was defeated or omitted by some act of the defendant therein; and that the issuing of the pluries fi. fa. would be wrongful and void after the voluntary relinquishment of a former levy on sufficient property to satisfy the debt without the assent of the defendant in the execution, or some act of his to prevent a sale; that if the Jury found that the defendant Tiffany, at the time of the sale on the bank execution, actually applied the avails of that sale to that execution, he could not afterwards make an application of the money on the Phillips execution, and thereby leave the bank judgment in force; and that if the jury found that at the time the Phillips execution came to the hands of the sheriff, the execution of Cozens was dormant, the levy which had been made under the latter would not enure as a levy on the former. The defendant’s counsel excepted to the omission to charge as requested, and to the charge as delivered. The jury found a verdict in the plaintiff’s favor for the value of the property, which the supreme court sitting in the sixth district refused to set aside. After judgment for the plaintiff, the defendant appealed to this court.
    
      B. F. Rexford, for appellant.
    
      J. A. Spencer, for respondent.
    
      
       And see Denvrey v. Fox, 22 Barb. 522 ; Rodde v. Whitney, 4 E. D. Smith 378; Duncan v. Harris, 17 S. & R. 435 ; Porter v. Boone, 1 W. & S. 251.
    
   Hoyt, J.

For the purpose of showing that the judgment upon which the execution issued had been satisfied, the plaintiff was permitted to prove, that at the sale of property upon a former execution issued upon the judgment, the deputy sheriff said he had sold property enough to satisfy it. I do not deem it important to determine whether this evidence was properly received or not, as the subsequent evidence clearly showed what property was in fact sold, and the amount it brought. I think however that the evidence was improperly received. The sheriff’s return upon the fi. fa. was prima facie evidence of his proceedings therein, but as between these parties it was not conclusive. The sheriff’s return is competent because it is the official act of the officer; and if false in fact, and either party is thereby prejudiced, he has a remedy against the sheriff for the false return. But no such remedy exists for any casual statement which he may have made at the sale. It seems to me such declarations are not competent between these parties either to impeach the return, or to prove the fact of a sale, or the amount of the proceeds thereof. The sheriff was a competent witness for either party, and could have been called to prove the amount of the proceeds of the sale, or the plaintiff might have called any other person, who was present and knew the facts, to testify to the amount the property brought on such sale. But, as I have said, it is not necessary to determine this question.

It appeared from the evidence of the deputy sheriff that he levied the alias fi. fa. upon sufficient property of the defendant therein to have satisfied it, but not enough to satisfy that and the Cozens execution, and that property was levied upon which was not sold. But there was no evidence to show that such property was ever removed or taken from the custody or possession of the defendant in the execution, and no such ground was taken or assumed upon the trial. The court charged the jury, in substance, that if the property of the plaintiff levied upon by the alias fi. fa. was abundantly sufficient to satisfy said execution and the fees of the officer, and would, if sold on said execution, have sold for sufficient for that purpose, then as a matter of law the execution was satisfied, although the property was relinquished, unless the sale was defeated or omitted by some act or request of the defendant in the execution ; and the issuing of the further execution would be void, after a voluntary relinquishment of a former levy on sufficient property to satisfy the debt, without the assent of the debtor,- or some act of his to prevent the sale.

There are some old cases in which dicta are found, that a levy upon suEcient property to satisfy an execution is a satisfaction, but that doctrine has long since been exploded, Where a sheriff levies upon suEcient property, and through his negligence or misconduct it is lost, destroyed or otherwise disposed of, so that the defendant is deprived of the benefit of it, there is no doubt it should be regarded as a satisfaction of the execution, and the plaintiff must in such case seek his remedy against the sheriff. But where the debtor has neither paid the debt, nor been deprived of his property, the simple act of levying upon it is not a satisfaction, whether the debtor has been permitted to retain the property either by his own misconduct, or by his request, or the voluntary act of the oEcer, because neither works any wrong to him. (Greene v. Burke, 23 Wend. 496; Ostrander v. Walter, 2 Hill, 231; Taylor v. Ranney, 4 id. 621 ; Voorhees v. Gross, 3 How. S. T. R. 262.) The exception to the charge in this respect was well taken.

The judge also charged the jury “ that in case they should find that at the time the Phillips execution came to the sheriff’s hands, the execution in favor of Cozens & Peck was dormant, then the levy by virtue of the latter would not enure as a levy on the former execution.” The levy on the Cozens execution was good as against the judgment debtor, and if the sheriff had sold under it after it became dormant as against creditors, and after the Phillips execution came into his hands, the sale would not have been void. The defendant in the execution could not have taken advantage of its being dormant. It would then have been a mere contest between Cozens and the owner of the Phillips judgment, to determine upon which execution the avails of the sale should be applied. And although the jury should find that the Cozens execution was dormant as against creditors of the judgment debtor, still as against the defendant in the execution, the sheriff had in law the custody and control of the property under that execution at the time the Phillips ex. ecution came into his hands. No new levy was necessary to authorize him to sell. At all events, the debtor could not complain of the want of a new levy because the old levy was good as against him. (3 B. & Ald. 95.) I think the judge should have charged that if the Cozens execution was dormant as against the owner of the Phillips judgment when the execution upon that came into the sheriff’s hands, the old levy was sufficient for both executions ; that the Phillips execution should bo first paid from the proceeds of the sale, and if there was any surplus it should be applied upon the bank judgment; and that the owner of that judgment was only entitled to such surplus after the payment of the Phillips judgment. He should also have charged that although the sheriff at the time of the sale supposed the proceeds were all to be applied to the payment of the bank judgment, if he discovered his error before making his return, he had a right to make the application of a sufficient amount of the money for that purpose to the payment of the Phillips judgment. In other words, if he did what the court on a summary application would have required him to do, neither the sheriff nor the owner of the bank judgment should be prejudiced thereby. I think the sheriff properly paid the Phillips judgment from the proceeds of the sale on the alias fi. fa. upon the bank judgment.

The statute declares that if there be several executions issued out of a court of record against the same defendant, that which shall have been first delivered to the officer to be executed shall have preference, notwithstanding a levy may be first made under another execution. But if a levy and sale of any goods and chattels shall have been made under such other execution before an actual levy under the execution first delivered, such goods and chattels shall not be levied upon or sold by virtue of such first execution. (2 R. S. 366, § 14.) The effect of this provision is to make the sale under such prior execution valid, or to declare that the purchaser’s title shall not be defeated by a subsequent levy and sale under the senior execution. But I apprehend in making a disposition of the proceeds on such sale the sheriff must be governed by the priority in the delivery of the executions to him, unless such prior executions have for some reason become dormant as to the subsequent ones.

An exception was taken to that part of the judge’s charge, directing the jury “ that if they should find from the evidence in the case, that the defendant Tiffany, at the time of the sale on ihe bank execution actually applied the avails of that sale to that execution, he could not of his own voluntary act after-wards make an application of that money on the Phillips judgment, and thereby leave the bank judgment in force.” Justice Morehouse, in delivering the opinion of the supreme court upon this branch of the case, says, “ Phelps had a right to insist that his execution, if not otherwise satisfied, should be out of the property of the plaintiff.” “ That the defendant in this suit was the equitable proprietor of both judgments. He was one of the defendants in the Phillips judgment, and the assignment to the son was no doubt intended to avoid the consequence of a payment by himself, to wit, an extinguishment of the judgment.” I am unable to find any evidence in the case to show that the defendant advanced the money ,to pay the Phillips judgment, or that the assignment was taken to his son for his benefit. The only proof upon that subject was the attempt to prove it upon the cross-examination of Mr. Simonds. He testified “that on the 2d Monday of June, 1844, Phillips assigned his judgment to Albert Tiffany, a son of the defendant. The assignment was made at Mr. Rexford’s office. That Rexford then told the witness, who was a deputy sheriff, that he would then receive his directions from him as the attorney of Albert Tiffany. That he could not say it was paid for the defendant. That the judgment was then assigned to the defendant’s son.” It seems to me if this evidence proves anything it proves that the defendant was not the purchaser or owner of the Phillips judgment. It clearly falls far short of proving that he was the owner of it, or that the assignment was made for his benefit and to avoid an extinguishment of the judgment.

The evidence showed that the whole proceeds of the sale which took place in July, 1844, if applied upon the bank execution, would not have satisfied it. There would still have been due upon it $6,39. For that sum the pluries execution might issue. And it may well be 'doubted whether the direction to collect more than was actually unpaid upon the judgment would render the execution void. I think it would only have been voidable. In such case the plaintiff might, upon a sum-¡nary application to the court, have had the execution set aside for that reason, or the direction as to the amount to be levied, amended and corrected. Or he might omit this and permit a sale to take place, and when the sheriff should have sold sufficient to pay the amount actually due, any further sale upon it would be nugatory. But I can see no substantial reason why a sale to the amount actually due would not be valid under such an execution. In this case the whole proceeds of the last sale only amounted to #7,25, which was less than the amount proved to be due for principal, interest and sheriff’s fees, if the whole proceeds of the first sale had been applied upon the bank execution. The judgment of the supreme court should be reversed and a new trial ordered.

Ordered accordingly.  