Samuel J. Gholson, Administrator, &c., et al. v. Ledyard Hatter et al., 26 Miss. 240

Mr. Justice Eisher delivered the opinion of the court. The defendants in error, on the 30th day of October, 1846, recovered a judgment in the circuit court of Monroe county against one Gabriel M. Ragsdale, for the sum of $637.23. . Ragsdale having died, a scire facias was sued out to revive this judgment against the plaintiffs in error, as his administrators. They pleaded to the writ a satisfaction of the judgment in the lifetime of Ragsdale. The facts on this subject are these. The judgment was sold - in 1847, under an order of the circuit court, for the costs due to the officers, and was purchased by S. J.

Gholson. While he was the owner of the judgment, by virtue of this purchase, he receive'd from Ragsdale the sum of $600, in full satisfaction of the judgment, and accordingly entered satisfaction thereof. This was done before the expiration of two years from the date of the purchase. Under this state of facts, the question arises for decision, whether this payment to Gholson, and his entry of satisfaction, notwithstanding a legal tender to him,-within the two years, of the amount of bis bid and ten per cent, thereon, constitute a good defence to the scire facias ?

The statute provides that, upon payment of the bid, the sheriff shall make an assignment in writing, of all the right, title, and interest of the plaintiff in said judgment; and that the purchaser shall have the absolute control and management of said judgment, and may order execution to issue thereon, in the same manner as if it had been recovered in his name. By the third

section of the act, the cause of action upon which the judgment is founded, is, by virtue of the sale, vested in the purchaser; and,he is specially authorized to enter satisfaction of the judgment, in the same manner that the plaintiff therein could do. Hutch. Code, 920, 921. This language will not admit of construction. By the sale and assignment in writing, the judgment was transferred to the purchaser; and he was, until redemption or tender, to all intents and purposes the owner thereof. His power to enter satisfaction was such as the plaintiffs possessed before the sale.

His entry of satisfaction must be treated as the act of the plaintiffs, and must so operate in law; whence it follows that the court erred in reviving the judgment. The plaintiffs’ remedy is exclusively against the purchaser of the judgment. His title during the two years is only conditional, and until it becomes absolute he is the trustee of the plaintiffs or their assignee. We are of opinion that the tender by the assignee was as valid as if made by the plaintiffs. The defence set up, that the title to the judgment is in the assignee, is entitled to no consideration.

The legal title, notwithstanding the assignment, still continued in the plaintiffs, and it was legally part of the contract that the assignee should be allowed the use of their names in all proceedings necessary to recover his rights. Judgment reversed, and cause remanded. A petition for a reargument was filed in this case by the appellees, but it was refused by the court. ,