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Third. That he is residing upon the land and that it is bis homestead.
The appellee demurred to the answer, and the court sustained the demurrer to the second and third paragraphs.
The appellant then answered by, in the language of the record, consolidating the first and second paragraphs. Whereupon the court sustained the demurrer to the entire answer. The appellant rested; final judgment was rendered in favor of the appellee, on his complaint, from which this appeal is prosecuted.
The only question is the sufficiency of the answer.
The whole proceeding is under the Code; no specific form need be followed, nor technical words used, and the language, taken in its common acceptation, it appears to us, the first paragraph showed the right of possession to be in the appellant, and that the appellee did not have title. If so, it certainly was a defense to the action.
The second paragraph sets up that the appellee was attempting to recover upon a sheriff's deed, which was regular upon its face, but which had been executed by collusion, and without consideration; that it recited that the lands in controversy had been duly levied upon, when, in point of fact, other and different lands had been levied upon; and that no levy whatever had been made upon the lands in controversy.
To constitute a good and valid deed, under an execution sale, there must be a valid judgment, a sufficient execution and levy, advertisement and sale; and although our statute, section 65, chapter 68, Gould's Digest, provides that a sheriff's deed shall be prima facie evidence of the facts recited in it, it by no means follows that a party litigant may not put those facts in issue, and go behind the deed to show their falsity; and if the court show such recitals to be false, it certainly affects the sufficiency of the deed, and such being public records, affect all concerned with notice; hence it becomes the duty of those purchasing to see that the records give authority for making
Lipscomb o. Grace.
the sale, and upon these grounds, it appears to us the second plea was good.
The third paragraph or plea avers that the applicant was in the possession of the land, and that it is his homestead. We are of opinion that this plea, in general terms, sufficiently shows that, if true, the land cannot be taken in execution, and is a good defense to a possessory action.
It follows that the judgment of the circuit court was erroneous, and it is reversed, and the cause remanded with instructions to overrule the demurrer and proceed according to law.
LIPSCOMB v. GRACE.
DELIVERY BOND-Judgment.- When an execution is sued out upon a judg
ment, duly levied upon property, a formal bond taken for its delivery and duly returned forfeited, the former judgment is merged and extinguished, and a statutory judgment springs into existence upon the for
feiture of the forthcoming bond. BANKRUPT.-It is competent for a surety, before he has made payment, to
prove up his contingent liability, on an application for a discharge in bankruptcy, and if he does not so prove up he is barred, by the certificate of discharge, from further action against the bankrupt.
Appeal from Jefferson Circuit Court.
Hox. H. B. MORSE, Circuit Judge.
English, Gantt f English, and Snyder f Mallory, for appellant.
It is well settled, by a series of decisions of this court, that
where an execution is issued upon a judgment, levied on personal property, a delivery bond taken, and returned forfeited, a new statutory judgment thereupon springs into existence, which merges and extinguishes the original judgment. Frazier v. McQueen et al.; 20 Ark. 68, and cases cited; Douglas et al. v. Twombly, 25 Ark., 124, and cases cited.
The fact that Grace did not sign the delivery bond, did not prevent the delivery bond judgment from extinguishing the original judgment. By failing to move to quash the delivery bond, at the return term, for want of the signature of Grace, the plaintiff, in the execution, impliedly accepted the bond, and the statutory judgment thereon as completely extinguished the original judgment as if Grace had signed the bond. Field 2. Morse & Hand, 1 Smedes f. Mar., 346; Coffee v. Planters' Bank, 11 ib., 458; King v. Terry, 6 How, Miss. R., 513; Head et al.,, Beaty 5, ib. 480, and cases cited.
The original judgment of Busby, the delivery bond judg. ment, and the judgment of Fricker, were all obtained before the date of Lipscomb’s petition for discharge in bankruptcy; the debts were provable under the bankrupt act, and he was absolutely and forever discharged from all liabilities upon the debts by his final discharge, which related back to the date of the petition. Bankrupt act, March 2, 1867, secs. 34, 35, 67, 78; Brightly, Annotated Bankrupt Law, pp. 44, 45, 69.
Not only the judgment creditors had the right to probate the debts against Lipscomb's estate in bankruptcy, but Grace, as surety, had the right to probate any one of them that he was legally bound as surety for. Bk. act, secs. 38, 63: Bright. An. Bk., pp. 45, 59.
That the act does not fall short of effectually and forever discharging the principal debtor because the surety remains bound, is manifest, not only from the sections above cited, but is put beyond controversy by the language of sec. 78, Bright.
n. Bk. L., pp. 69, 70, thus: “No discharge granted under this act shall release, discharge or effect any person liable for the
same debt for or with the bankrupt, either as partner, joint contractor, endorser, surety, or otherwise.”
Garland f Nash, for appellee.
These were valid and existing judgments against Grace, as surety for Lipscomb, and when he paid them, an implied contract was at once formed, that Lipscomb would pay him, and Grace had his remedy, under our Code, by motion.
When Grace paid the debt, his right against Lipscomb was established. 2 Bouv. Institutes, 75-6-7.
And, as furnishing a full answer to the defense of bankruptcy, we need cite only Payne v. Joyner, 6 Ark., 241,
At the May term, 1870, of the Jefferson circuit court, the aj pellee filed a motion for a summary judgment against the appellant, alleging that, on the 15th day of December, 1859, he, as security, had paid off two several judgments rendered in said court, respectively, on the 20 of December, 1865, and the 30th of May, 1867, against the appellant and himself.
After service and return of the notice, the appellee moved the court for judgment for one thousand and thirty.nine dollars and ten cents, the amount of the two judgments and interest thereon up to date.
The appellant appeared and resisted the motion. He filed his answer, containing four paragraphs. The first avers that the judgment of the 30th of May, 1867, for two hundred dollars, interest, etc., was not the individual debt of appellant, but was on a joint bond of himself and appellee.
In the second paragraph he avers the other note, upon which judgment was had, was not an individual debt, but joint, and that, after judgment, execution issued thereon and was levied upon appellant's property; a delivery bond, with E. Willis and Vital Achard as his securities, was given and forfeited, and
afterwards an execution issued, on the forfeited forthcoming bond, against him and his securities and the appellee, which, on motion of the appellee, was quashed, because the former judgment was merged, and appellant was no party to the judg. ment on the forthcoming bond, and that appellee was under no obligations to pay off said judgment.
The third denies the payment of the judgments.
The fourth avers appellants discharge in bankruptcy, and, as a part thereof, files his certificate of discharge, by which, in the usual form, a discharge was granted him from all debts and claims which,under the bankrupt act, were provable against his estate, and which existed on the 21st of May, 1868.
A demurrer was interposed and overruled as to the first paragraph, and the parties then went to trial before the court, sitting as a jury
The court found in favor of the motion, and rendered judg. ment against the appellant for $1,039 V, from which he appealed.
The various obligations, writs and bonds referred to in the pleadings, are set out in the record, but there is no bill of exceptions or agreement showing what the evidence was before the court.
The court declared three propositions of law. The first is unobjectionable.
Secondly, the court declared the law to be “that as Grace, the appellee, did not sign the delivery bond, the giving of such bond and its forfeiture, which created a new judgment, did not release the appellee from the prior judgment, and as he was bound by it, he could satisfy it at time.”
Thirdly, that “the final discharge of a bankrupt dates back to the time of filing the petition in bankruptcy, and only releases the bankrupt from debts due at the time of filing the petition, and any security debt paid, after filing the petition or discharge, is a valid claim against the bankrupt.”
The court below seems to have misapprehended the law on both these propositions. It has been repeatedly held by this