
    Howk v. Kimball and Another.
    If a debtor pay his judgment-creditor a sum equal to the amount of the judgment, and thereby cause the judgment to be assigned as a payment to another of his creditors, the transaction does not discharge the judgment, but the same continues valid in the hands of the assignee.
    Tuesday, May 11.
    ERROR to the Clark Circuit Court.
   Holman, J.

Kimball and Gerry each held a judgment against Faulkner and Jacob Teeple. AimiaZZ’s judgment was the eldest, and was replevied with Moore as replevin-surety: Gerry's was afterwards replevied with Moore and Anderson as sureties. A lot in Charlestown, the property of Jacob Teeple, was executed and sold on Kimball's judgment, and Kimball became the purchaser; leaving about 50 dollars of his judgment unsatisfied. It seems that, notwithstanding the sale of the said lot, Teeple still held a claim to it, which Kimball was disposed to extinguish; and, in consideration of a deed by said Teeple relinquish ing to Kimball all said Teeple’s claim to said lot, Kimball paid the said Teeple the sum of 100 dollars, and assigned to John Teeple, son of the said Jacoby the balance still due on his said judgment. After this transaction, an execution issued on Gerry’s judgment, which was levied on a tract of land, the property of Moore, the surety in both replevin-bonds; which tract of land was sold by the sheriff on said execution, and Howk, the complainant, became the purchaser. After this purchase, John Teeple caused an execution to he issued for the balance due on Kimball’s judgment, and had said execution levied on the said tract of land; claiming a lien on said land by virtue of the elder judgment. Howk,—contending that the transfer of the judgment from Kimball to John Teeple, was in fact and equity a transfer to Jacob Teeple, and consequently a discharge of said judgment, and that the holding up of the samo as unsatisfied, and issuing an execution thereon, was a fraud upon Moore the surety, and the creditors of Jacob Teeple,—filed his bill in chancery, making Kimball and the two Teeples defendants, praying an injunction, &c. The defendants answered, admitting the general statements in the bill but denying fraud, and alleging that the transfer of tho judgment from Kimball to John Teeple, was in payment of a debt due from Jacob Teeple to John Teeple; said John having paid 52 or 53 dollars for the benefit of said Jacob. A general replication was filed. The cause was then heard in the Circuit Court on bill, answers, and exhibits; and the bill was dismissed.

The only question here presented, is, was Kimball’s judgment discharged by Jacob Teeple in his contract with Kimball ? In settling this question, it must be taken that this transaction between Kimball and the two Teeples was conducted with good faith; the charge of fraud in the hill being expressly denied by all the answers. So that we are not to presumé fraud, unless it arises by intendment out of the premises. It is also evident, that Jacob Teeple did not intend to discharge tho judgment in his contract with Kimball. So that, if the judgment is to be considered as discharged, it must he on the ground that Jacob Teeple could not stipulate for a transfer of the judgment to a third person, and pay the consideration of that transfer, without neccssarily discharging the judgment, and thereby defeating the intention of his stipulation.

Taking this transaction in its simplest form, and giving it all its force in behalf of the complainant, let us consider it as if Jacob Teeple had paid to Kimball a sum equal to the full amount due on the judgment, as the consideration of the transfer from Kimball to John Teeple. Now it is well settled, that a payer may direct the manner in which his payments are to be applied; and there can be no question but that while Kimball held the judgment against Jacob Teeple, said Jacob might have paid him several sums of money for various purposes, without discharging the judgment. If Jacob Teeple had paid him a sum equal to the amount due on the judgment, to be applied to some specific purpose, and he had so applied it, it could not be pretended that the judgment would have been thereby discharged. If, for example, Jacob Teeple had placed money in his hands to be paid over to John Teeple, and he had paid it accordingly, the judgment would not have been aflfected by that transaction. In this view of the case, we are supposing that Kimball was to pay Jacob Teeple 159 dollars for the lot; 100 dollars to be paid to Jacob Teeple himself, and the balance to satisfy a debt which he says he owed to John Teeple, or at least to secure it by a judgment. The payment of the judgment formed no part of the stipulations. The transfer of it, as so much money, from Kimball to John Teeple, was no more like a discharge of it, than if Kimball had paid the money to Jacob Teeple, and Jacob had paid it to John, and John had purchased the judgment from Kimball with it; which might have been done in good faith, and have produced the same result as has been produced by the agreement under consideraiion. So that if Jacob Teeple did really, in relinquishing his claim to the lot in Charlestown, pay to Kimball a price equivalent to the balance due on the j udgment, as the consid eratl. >n of the transfer from Kimball to John Teeple; yet as the judgment never became his, and as he did not intend to discharge it, it never was discharged cither in law or equity. We see nothing in the transaction more unfair than the preferring one creditor to another. It seems that Jacob Teeple had a price in his hands, by which he might have discharged the judgment, and exonerated his surety Moore, and also furthered his creditor Gerry in the collection of his judgment; but he preferred to let the judgment remain unsatisfied, in order to secure a debt which he says he owed to his son. But neither Moore nor Gerry has any greater reason to complain, that Jacob Teeple did not pay off the judgment, instead of stipulating for its transfer, than they have to complain that he did not pay it off with a part of the 100 dollars he received from Kimball, or that he did not apply the balance of the money he obtained from Kimball, in lessening the judgment of Gerry and the responsibility of Moore.

IJowk, for the plaintiff.

Thompson, for the defendants.

But it is not conclusive in this case that Kimball received, or supposed he received, a full equivalent for this judgment as a consideration of the transfer. He too might have had his preferences; and he might have been willing to transfer the judgment to John Teeple, for a smaller consideration than that which would have induced him to enter a discharge of the judgment in favour of Jacob Teeple. Besides this, the means by which Jacob Teeple procured this transfer to his son, as well as the 100 dollars to himself, seem, on the part of Kimball, to have been wholly gratuitous. As far as we are informed, Kimball, by his purchase at sheriff’s sale, had as complete a title to the lot in Charlestown, as either the law or Jacob Teeple could give him. So that Jacob Teeple had no claim to the lot either in law or equity. And neither law nor equity requires a resort to rigid constructions, in search of fraud in the disposition of a fund, which seems to have been obtained from Kimball more as a matter of favour than as a matter of right.

We, therefore, discover nothing fraudulent in the transfer of . this judgment to John Teeple: nothing to prevent him from collecting the balance due upon it. Consequently, we see no rear son for reversing the decree of the Circuit Court.

Per Curiam.

The decree is affirmed with costs.  