
    FARMERS’ BANK, use of William Herdman vs. ISAAC GRANTHAM’S terre-tenants.
    Lands sold under the mortgage of a devisee will not discharge a judgment against the testator.
    I. G. confessed a judgment to the hank and afterwards devised his lands to T. J., who executed a mortgage under which the lands so devised were sold. The sheriff applied a part of the proceeds to the bank’s judgment vs. I. G. The mortgage creditor sued the sheriff for the money so paid and recovered; the sheriff then brought suit against the bank to recover back the money and failed; He then took an assignment of the hank’s judgment vs. T. G., and recovered the amount from the terre-tenants; it being held — 1st., that the payment of any part of the proceeds of sale under the mortgage of T. J. to the judgment of I. G., was a misapplication of the , fund by the sheriff; 2d., that the sheriff was liable to the mortgage creditor for the , full amount of sales under the mortgage; 3d., that the sheriff could not recover it back from the bank as money paid on a mistake, it being but a mistake of law; and 4th., that the payment to the bank by the sheriff in thus misapplying the money did I not operate as a discharge or payment of the judgment, the same having never I been satisfied, and that the judgment still bound the laud.
    I Scire facias on a judgment. Pleas payment; and that under a ¡writ of levari facias in favor of Joseph Sawyer, use of Samuel IfticDowell vs. Thomas Jaquett and others, William Herdman, then sheriff, sold lands upon which the judgment mentioned in the scire facias was a prior lien, and that out of the proceeds of said sale the fcank received payment and full satisfaction for the amount due on [aid judgment.
    I The facts in the case were these: — Isaac Grantham in his lifetime, [rave a bond and judgment to the Farmers’ Bank; he died, having Bevised his lands bound by that judgment to Thomas Jaquett, whom He made his executor. Jaquett mortgaged the land to Sawyer, who assigned the mortgage to McDowell; McDowell executed the mortgage and sold .Taquett’s land; being the same land bound by Gran-tham’s judgment. The bank demanded payment of their judgment out of the proceeds of sale; the sheriff paid it to the bank; McDowell brought suit against him, claiming the whole proceeds of sale as applicable to his mortgage, and recovered; Herdman then sued the bank to recover back the money so paid to them in ignorance of the law, and failed to recover; the bank then assigned to him the judgment against Grantham, which judgment had not been satisfied upon the record; and Herdman as such assignee sued out the scire facias against Grantham’s terre-tenants.
    
      Rodney, for defendants,
    insisted that the payment made by Herd-man to the bank, out of the proceeds of Jaquett’s land bound by the judgment, was a satisfaction of that judgment; and that no proceedings could be had upon that judgment either by the bank or by its assignee; notwithstanding it afterwards turned out that the proceeds of sale of Jaquett’s land were not applicable to that judgment, and Herdman had to pay them to other claimants. He put the case of | a sale by a sheriff on two executions for an amount sufficient to satisfy only one, and an application of the money to the younger execution, would it not be a satisfaction of that execution? and could I the sheriff resort to the defendant, after he was compelled to pay the first execution? So of the payment of the proceeds of sale to a ju-l niorj'recognizance, there being an older one unsatisfied.
    
      Gray and Rogers, for the plaintiff,
    contended — 1st. That the factsl abovej-stated, did not sustain the plea of payment, either as pleaded! generally; or as specially pleaded, of payment out of the sale of lands! bound by the judgment of Grantham; a sale made on the mortgageI of the devisee of Grantham. They contended that these special pleasl amounted to no more than a plea of payment; and that under theml evidence of a mere legal discharge was not admissible. (1 liarrl Rep. 23.) The question then was, whether the facts amounted to payment of this judgment. Those facts were, that Wm. Herdman] on a certain day, paid into bank a certain sum of money, and on the same day Isaac Grantham’s account in bank was credited with similar sum; the judgment still remaining open, and being now asi signed by the bank to Herdman. There was no payment of tin] judgment; it was not even a legal discharge; the law being as it hal been decided by this court, that the proceeds of sale of Jaquett’l land, (the devisee) upon a mortgage made by Jaquett, and for thf payment of Ais debts, were not applicable to the judgment of Gran-tham, which bound upon the same land; and such a sale did not discharge the judgment against Grantham.
   Per Curiam.

Bayard, Chief Justice.

The question is, whether this judgment has been paid? The defendant may pay himself, or any one may pay in his behalf by his consent given either before or after. To make a payment there must be an intention to pay and to receive payment. Sheriff Herdman having sold the lands of Jaquett,’bound by the judgment of Grantham, paid a part of the proceeds in satis-' faction of that judgment. What was the effect of that payment? Did it satisfy and discharge the judgment against Grantham or not? Mr. Herdman certainly did not intend to pay this debt for the benefit of the heirs of Grantham. As sheriff he applied certain funds in his hands, belonging to Grantham's heirs, in satisfaction of the judgment. But this ho could not do. It was, therefore, no payment by or in behalf of the heirs of Grantham. Was it a payment by Herd-man in his own behalf? This could not be without the intention so to pay; and the effect of such a payment would not be to discharge the judgment as against the defendants; the judgment, therefore, not being discharged, it was competent for the bank to assign it to Herd-j man, as to a purchaser. The cases put illustrate our view of this case. If a sheriff having two writs of fi. fa. both levied on the defendant’s property, sells to an amount sufficient to cover the first writ, and applies the money to the second; he is liable to the first execution creditor for the misapplication of the money; he cannot recover it back from the plaintiff in the second execution, as money [paid under mistake of the. law; and he cannot recover it again from [the defendant, because the payment satisfies the second execution and Tthe judgment on which it issued, and no assignment of that judgment 30uld authorize him to issue an alias execution upon it. The sheriff liad a right to sell on that execution; his application of the money to [t, whether right or wrong, had the effect to pay off and satisfy the pecond execution and judgment in law, as his return to the writ rould be a satisfaction of the judgment in fact. In this case the Iheriff could not by any application of the money arising out of the Jale of Jaquett’s land, legally satisfy and discharge the judgment Ivhich Grantham owed to the bank. He had no power or authority Js sheriff to sell the land so as to discharge it from the lien of that Judgment. The judgment remained and the lien existed still. If then his subsequent payment of the money to the bank is to be regarded as a payment and discharge of the judgment, it must be on the idea of a personal payment by Herdman in behalf of the defendants, and not as an official application of funds in his hands as sheriff. But the case before us excludes this supposition. The same distinction answers the last case put. The sheriff may apply the proceeds to the recognizance and thereby discharge it; and if he does misapply it he can have no remedy through the recognizance.

Gray and Rogers, jr., for plaintiff.

Rodney, for defendant.  