Musser v. Gray

TEMPLE, C. This is an appeal from an order directing the entry of satisfaction of the judgment. The order was made on motion of defendant, on the ground that “said plaintiff has received satisfaction for said judgment, and that said defendant has been duly discharged by the insolvent court from said judgment.” The order appealed from does not show upon which of these grounds it is based. It appears that plaintiff recovered a money judgment against defendant, February 18,1887; that a writ of attachment had been theretofore [640]issued, which had been duly levied upon a certain tract of land claimed by defendant in San Diego county; that after the entry of judgment an execution was issued and levied upon the same land, under which the land was sold to third parties for $37. The further sum of $250 was also collected by the sheriff on said execution, and after deducting his costs he paid to plaintiff’s attorney $247.26, properly applicable to the judgment. Nothing more has ever been paid upon the judgment, but in defendant’s affidavit, which was one of the papers upon which the motion was based, it is shown that on the 20th' of May, 1887, defendant entered into an agreement with plaintiff and one Abbott, who also had a judgment against defendant, for the release and discharge of the judgment, which agreement is as follows:

“In consideration of the delivery to Henry Abbott of a deed to the property of B. P. Gray, situate in San Diego county, state of California, we and each of us hereby agree that we will release the said E. P. Gray from any and all obligations to us or either of us owing, except in so far as his indebtedness to us is secured by virtue of an attachment levied upt-a the said property of the said E. P. Gray in said San Diego county. It being the intent of this agreement that the said parties hereto shall have the right to enforce their claim against the said Gray in so far as the same relates to the property of the said Gray situate in San Diego county, aforesaid, but to release him from any indebtedness to us remaining after realizing upon the said property.

“Dated May 20, 1887.

(Signed) “J. W. MUSSER.

“HENRY ABBOTT.

“Signed, sealed, and delivered in the presence of

“W. H. CHICKERING.”

That the deed mentioned in the agreement, by request of both plaintiff and Abbott, was executed and delivered to W. H. Chickering for them. It is then shown that defendant commenced proceedings to secure his discharge as an insolvent debtor under the laws of this state. Such proceedings were instituted in June, 1888, and a certificate of discharge was issued therein on November 12, 1888. A large portion of the record and of the briefs of counsel are taken up with questions in regard to the insolvency proceedings, but, as the dis