Case v. Palmer & Vanwart. satisfied by the defendants in full to the plaintiff, for the loss or damage sustained by him, and in full for any claim therefore against the defendants under the policy. The expression "paid and satisfied in full," necessarily involves acceptance by the creditor of that amount as of all that is due him; for as payment means the discharge of a debt, "paid and satisfied in full," in the sense in which it is used in this plea, means to discharge the debt, to deliver to the creditor the value of the debt in money to his acceptance or satisfaction, by which the obligation of the debtor is discharged; which is in fact, the definition of "payment" in the Imperial Dictionary. Unless this was all that was due, and the plaintiff accepted the payment in full satisfaction, the allegation that the defendants paid and satisfied in full was not proved, and the jury could not have found for the defendants. But the very question left to the jury, and on which they found was, that the defendant paid, and the plaintiff authorized the receipt for him by Duff & Travis in full, by his ratification and affirmance of the payment, and therefore assuming the plea to be held bad on demurrer, which we by no means affirm, we are clearly of opinion the case falls within the rule enunciated, and is cured by the verdict. Rule discharged. CASE v. PALMER & VANWART. OCTOBER 25, 1870. A. issued an execution against B., and under it the sheriff advertised to sell lands of B., which C. claimed to have purchased at a former sale. C. obtained an injunction to restrain the sheriff from selling the lands under the execution of A. Held, That the injunction must be dissolved, as without a sale A. could have no locus standi to contest the title of C. to the lands, whether the sale to C. was valid or not being a question of law. This was an appeal from the following judgment given by Mr Justice Allen at the last Equity Sittings, in which the facts of the case are fully set forth. "This was a motion to dissolve an injunction granted to restrain the defendant Palmer, the sheriff of Queen's County, from selling certain lands advertised by him under an execution issued against John Case at the suit of the defendant Vanwart, the sale of which was to have taken place on the 26th March last. The plaintiff claimed the land under two deeds from the sheriff of Queen's County, founded on judgments and executions against John Case; the first at the suit of the executors of Alexander Black, in August, 1866, for £147 8 7d., the cther at the suit of the present plaintiff, on a bond and warrant of attorney, in June, 1867, Case v. Palmer & Vanwart. for $3,702; and the bill alleged that he had been in possession of the principal part of the land since his purchase, in August, 1866. The affidavits in support of the motion state that the sheriff had levied upon personal property sufficient to satisfy the execution at the suit of the executors of Black, which by their direction he abandoned, and sold the land. That the judgment obtained by the plaintiff against John Case (who was plaintiff's father), was fraudulent and void, and without consideration, and that it was defrauding the creditors of John Case, stating several acts and declarations of the plaintiff and of John Case, which were relied on as making out the fraud. The affidavits on the part of the plaintiff in answer, denied the charge of fraud, and stated facts to show a bona fide indebtedness from John Case to the plaintiff. It was also stated that on the 6th February, 1865, John Case had conveyed all his property, real and .personal, to trustees in trust for the benefit of his creditors, on certain conditions, and that the trustees requested the executors of Black not to sell the personalty under their execution, which issued the 4th October, 1865; in consequence of which the sheriff did not sell the personalty, but proceeded to sell the real estate. That on the 6th February, 1866, John Case, finding that his creditors would not accept the conditions of this trust deed, executed an additional assignment of his real and personal property to the trustees for the benefit of his creditors; but that no personal property came to their hands, it having been seized and sold by the sheriff under the execution issued at the suit of the plaintiff; the only property which the trustees got under this assignment, being an equity of redemption in land mortgaged by Case. It is unnecessary, in the view I take of this case, to consider whether the charge of fraud is made out or not, or to remark upon the peculiar transaction of the trust deeds, which were not produced. If the first deed conveyed all the real and personal estate of John Case to the trustees, how could it be sold under the subsequent execution at the suit of Black's executors, issued in October, 1865? The ground upon which I think the plaintiff must fail is this: The defendant, Vanwart, is without doubt a judgment creditor of John Case, and as such, has the right to issue execution on his judgment, and to seize and sell any land, or any right or interest in land that John Case may be possessed of or entitled to. If he has no right, title, or interest in the land advertised by the sheriff, the formal sale of it cannot affect the plaintiff's right, as it cannot alter the possession. Whether the sale by the sheriff to the plaintiff conveyed no title, either on account of fraud in the judgment or because there was sufficient personalty to satisfy the executions, and the title consequently still remains in John Case, is purely a legal question prop Case v. Palmer & Wetmore. erly determinable in a Court of law; and I am not aware of any principle of equity by which a judgment creditor should be restrained from levying on property which he claims to belong to his debtor, and trying out the legal title of the person in possession of such property. If the sheriff's deed gave the plaintiff a good title to the land, he will have a good legal defence to any action of ejectment that may be brought against him by the purchaser under Vanwart's execution; and therefore as his remedy at law is perfect and complete, he has no right to come to a Court of Equity, and this Court will not restrain the action, Thrale v. Ross (3 Bro. c. c. 56); Corporation of Arundel. Holmes (4 Beav. 325); Norris v. Day (4 Y. & C. 475); Fox v. Hill (2 D. & J. 356). It is not the practice of the Court of Equity to withdraw the consideration and decision of a case from a Court of Law, unless it can be shewn to the satisfaction of the Court that the case involves an equitable element; because a man has no right to come to this Court for relief if he has a good defence at Law, Harding v. Webster (1 Dr. & Sm. 101, 6 Jur. N. S. 88); Traill v. Baring (33 Law J. Ch. 521). What equity is there for asking this Court to say to the judgment creditor: "You shall not put yourself in a situation to try the right of the plaintiff to this land in an action at law?" A Court of Law is perfectly competent to deal with that question; and the plaintiff can have no defence in equity to a suit for the land, that would not be open to him in an action at law, so far as I can see. These are the principles governing cases where applications are made to stay proceedings at law, taken against the person who asks the interference of the Court of Equity; but there are no proceedings taken against the plaintiff here, and non constat that there ever will be any, so that up to this time he has sustained no injury by the act of the judgment creditor. The injunction was in the nature of a proceeding quia timet, and was, I think, entirely premature. Had the sheriff sold an alleged right and interest of John Case in the lands claimed by the plaintiff, and given a deed thereof, and had the purchaser brought an action of ejectment against the plaintiff, there might have been more reason for asking this Court to restrain the proceedings, though I do not mean to say there would have been a sufficient ground to do so unless the proceedings were vexatious and not bona fide, as in Buckland v. Gibbins (32 Law J. Chan. 391); because if the sheriff's deed conveyed no title, the party in possession of the land would have had a good defence at law, and therefore would not require the assistance of this Court. Whatever might have been the result of an application for injunction in such a case as that, it is enough to say that I think the plaintiff has entirely failed to establish any right to restrain the defendant, Vanwart, in Case v. Palmer & Vanwart. his present proceedings, and that the injunction must be dissolved with costs. Skinner, Q. C., for the appellant. In this case Judge Weldon granted an injunction to restrain the respondent, Palmer, sheriff of Queen's, from selling the lands of the appellant under an execution issued out of the County Court against John Case, the appellant's father, at the suit of Vanwart. The lands in question formerly belonged to John Case, but are now the property of the appellant, having been bought by him at sheriff's sale, under an execution issued out of the Supreme Court, and being now in the appellant's possession. I contend that the judgement of Mr. Justice Allen dissolving that injunction should be reversed, and that I show sufficient equities to cause-the Court to restrain a third party from obtaining a deed by the sale of the land under this execution of Vanwart's, and spreading it on the record, to the detriment of my title. [RIRCHIE, C. J.: The difficulty of this case is, that if we stop the respondent now, we prevent him from going to law and trying out his title with you.] The point I desire to bring before the Court was, whether if A. sells the lands of B. under an execution, can C. come next day and sell them again under another execution? [RITCHIE, C. J.: How can he get a locus standi to contest your title, unless he is allowed to do so? Suppose he finds that the sheriff never advertized the land under the first execution, or that there was sufficient personal property to satisfy it?] Suppose an innocent purchaser should buy at the sheriff's sale? [RITCHIE, C. J.: He buys at his own risk. Equity has nothing to do with it; if the first deed of the sheriff is bad, it is a proper matter to be tried at law. WETMORE, J.: Suppose instead of advertising the land at all, the sheriff sold it next day after the execution issued, could it not be a sold under a subsequent execution, and would not the first sale be nullity? RITCHIE, C. J.: The judgment creditor has a right to sell his debtor's interest in the land. If the first sale was wrong, has not the debtor got an interest in the land still, and cannot the creditor go on and sell it?] The clause that the sheriff cannot sell the land of the debtor until the personal estate (if any can be found), is exhausted, would seem to imply that there is a discretionary power in the sheriff. [RITCHIE, C. J.: Unless the sheriff exercises his power properly, the sale by him is a nullity. The judgment creditor has neither ad jus in re nor jus rem, unless there has been a sale under his execution.] A. L. Palmer, Q. C., for the respondents, was not called on. RITCHIE, C. J.: There cannot be a doubt about this case. This Duncan v. Reynolds. judgment creditor cannot get a locus standi in this land until there is a sale under this execution. If the appellants deed was fraudulent from first to last, and the judgment creditor attempted to set it aside without a sale, he could only do so if all the other creditors came in. FISHER, J.—I am of the same opinion. WETMORE, J., concurred. ALLEN, J.-I have not changed the opinion which I expressed in my judgment. Appeal dismissed DUNCAN V. REYNOLDS. OCTOBER 29, 1870. Where notice of appeal from the judgment of a Judge in Equity is given, and the case is not entered on the appeal paper, the opposite party may move to have it entered and dismissed with costs. A. L. Palmer, Q. C., on a former day in this term, moved to enter this case on the Equity appeal paper, with a view to the appeal being dismissed. It appeared from affidavit, that notice of appeal from the judgment of Wetmore, J., in Equity, was given by the opposite party, but that the case had not been entered by the appellant on the Equity appeal paper. Cur. adv. vult. RITCHIE, C. J.: We are all of the opinion that this case may be entered on the appeal paper, and dismissed with costs. If the appellant had entered the case and did not appear, it would have been our duty to hear and determine the appeal on the merits; but where notice of appear has been given, and the case not entered on the appeal paper, we think the other party should have the right to enter the case and have it dismissed with costs. Per Curiam. Motion granted. |