Snyder v. Clark
Before: McFarland
Synopsis
Execution Sale—Sheriff’s Return—Payment of Judgment—Contract of Purchaser With Surety—Estoppel.—The return of a sheriff respecting a sale of the real estate of a principal debtor under two executions, stating that the purchaser had paid the amount of both judgments, and that they were wholly satisfied out of the proceeds of the sale, is not conclusive, and does not estop the purchaser from proving that the sheriff received no purchase money in fact, and that one of the judgments was paid and satisfied in pursuance of a contract with one of the judgment debtors who was cosurety with another judgment debtor, the father of the purchaser, in whose interest the contract was made, providing that the cosurety should reimburse the purchaser for one-half of the judgment if all were paid by the purchaser, and that the contract contemplated the right to bid at the sale.
Id.—Action Upon Contract—Evidence—Condition of Land.—In an action upon the contract to recover the money agreed to be contributed in reimbursement of one-half the amount of the judgment paid, evidence is admissible to prove that the land bid in by the purchaser at the sheriff’s sale was mortgaged to the extent of six thousand dollars, and that a homestead had been declared upon it by the principal debtor before the levy of the execution upon it, as tending to show that the bid at the sale in satisfaction of the judgment was contemplated by the contract, and was not a breach of the contract to pay the judgment.
McFarland, J. The defendant is administrator of O. W. Craig, deceased. Craig, in his lifetime, and Franklin Sears as sureties, had with G. C. P. Sears as principal made two promissory notes to one Wiclcersham for something over $4,000; and on December 9, 1889; Wickersham had recovered judgment on said notes against all three of said persons for $4,280.40 and costs. The plaintiff herein and said Franklin Sears had [415]also, as sureties, made another note with said G. C. P. Sears as principal to said Wickersham for a large amount, upon which Wickersham at the same time had recovered a judgment for $21,582.60 and costs. Wickersham took out executions on said judgments, upon which personal property of G. C. P. Sears was levied upon and sold for something over $16,000. This money was applied pro rata upon the two judgments—leaving unsatisfied upon the judgment against Craig and the two Sears the sum of $2,010, and upon the judgment against the plaintiff, Mrs. Snyder, and the two Sears, $10,053. There is"no issue in the case as to the propriety and legality of said pro rata application to said judgments.-
The said Franklin Sears was the father of the plaintiff, Mrs. Snyder, and it is averred in the complaint (substantially) that she proposed to Craig that she would pay her father’s half of said balance of $2,010, for which she was not liable, if he, Craig, would pay the other half; that Craig assented to the proposition, but said that he would not have any ready money for a short time, and agreed and promised that if she would also pay his half and satisfy the judgment, he would pay to her his half, to wit: $1,005; that in pursuance of his agreement and promise she paid the whole of said amount, and thereby satisfied said judgment; that afterwards Craig refused to pay her any part of said $1,005, and that his administrator, after due presentation of her claim, also refuses to pay any part thereof. The action is to recover said $1,005. The court below found that such contract had been made by and between said Craig and plaintiff; but found, also, that plaintiff had not paid and satisfied said balance of judgment of $2,010, and thereupon gave judgment for defendant. Plaintiff appeals from the judgment, and from an order denying a new trial. The only question involved is whether or not appellant paid and satisfied said judgment.
At the time of the levy of the execution upon the personal property of said G. C. P. Sears there was also a levy made upon certain real property belonging to him; [416]
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