Delano v. Wilde

77 Mass. 17

Opinion

Metcalf, J.

When a judgment is reversed, which has been satisfied by a levy on the debtor’s personal property, or by his paying money, he is entitled to restitution of the amount which he has lost. If the levy was made on his real estate, he may recover it, with rents and profits, in a writ of entry against the levying creditor or such creditor’s grantee; his rights being, in this commonwealth, like those of a judgment debtor whose property has been taken on a writ of elegit in England. 1 Rol. Ab. 778. Bac. Ab. Error, M. 3. Sympson v. Juxon, Cro. Jac. 699. Goodyer v. Ince, 2 Brownl. 208, and Gro. Jac, 246. Cummings v. Noyes, 10 Mass. 434. Kennedy v. Duncklee, 1 Gray, 67, 68. Rev. Sts. c. 101, § 14.

The decree in this case must be, that the mortgages made by Wilde be discharged. The mortgagees have no better title than Wilde had. His title was under a levy of an execution issued on a judgment which has been reversed. By that reversal the levy was avoided, and Delano and Horton, the judgment debtors, were restored to their full right to the estate which was levied on, and may enforce that right, as well againsl the mortgagees as against Wilde.

Decree that the mortgages be discharged.