Case 19 — PETITION EQUITY
April 3.
Farmers Bank of Kentucky v. Collins, &c.
APPEAL FROM KENTON CHANCERY COURT.
1. A CHANCERY COURT HAS NO jurisdiction to cancel, set aside, or correct the records of a circuit court.
2. The Kenton Chancery Court has no jurisdiction to set aside or cancel a sheriff’s levy and sale of land made under an execution issued on a judgment rendered by the Kenton Circuit Court.
But for the purposes of the equity action in this ease the chancellor may decline to treat the sheriff’s sale as a satisfaction of the judgment.
3. The dockets of the chancery and circuit courts are in law separate and distinct, even where they are presided over by the same judge, and the writs issued by each, and the acts of the ministerial officers under them, must be set aside or annulled by the court from which they issued.
*139T. N. & D. W. LINDSEY for appellant.
1. One who has permitted judgment to go at law on a debt embracing usury can not, until after he has paid the debt, sue to recover the usury. (Stone v. McConnell, &e., 1 Duvall, 55; Ross v. Ross, 3 Met. 276.)
A bill taken in payment of a prior bill or for an antecedent debt is to be regarded as mercantile paper. (Swift v. Tyson, 16 Peters, 1; 1 Parsons on Bills and Notes, 257.)
Where the liabilities of drawer and indorser are fixed by due presentation, protest, and notice, they become liable to the holder as principals, and he can sue any one or more.
The indorser can not go behind a judgment against him, and say that the holder has done something which released him as a surety, or make questions about usury, or the action of the holder in seeking by legal means to make his debt.
2. When property has been levied on and sold as the property of one of the execution defendants, and it afterward turns out that he had no title, and it becomes necessary to quash the sale and return, it can not be said that the other co-obligors are released by the sale.
3. The chancellor of the Kenton Chancery Court ought to have set aside the sale made under, and quashed the return made on the execution issued on the judgment of the Kenton Circuit Court, and erred by sending the parties back to the circuit court. (Tucker v. Fogle, 7 Bush, 291; Shouse v. Utterbaek, MS. Opinion, June, 1859; Cassidy v. McDaniel, 8 B. Mon. 519.)
J. M. COLLINS FOR APPELLEE COLLINS.
1. The petition, in so far as appellee Collins is concerned, ought not to have been filed. (Civil Code, sec. 40; Johnson v. Chandler, 15 B. Mon. 589.)
2. The chancellor had no jurisdiction to revise or direct the proceedings of the common-law courts. (Howell v. McOreery’s heirs, 7 Dana, 388; Blight’s heirs v. Tobin, 7 Mon. 616.)
3. There is no fact alleged connecting appellee with the levy, sale, or purchase; hence there is no allegation to support the claim of the bank.
4. The bank purchased at the execution sale the title of Sayers to the thirty-five acres of land for the amount of its debt, and Sayers had a saleable title; hence the bank got what it purchased, and has no further claim against appellee.
5. There is no judgment directing a sale of the thirty-five acres, and until it is taken away from the bank there can be no possible reason for reviving the satisfied judgment of the circuit court.
6. Appellee Collins was but the surety of Sayers, which fact was known to the bank, and the new contract created between the bank and Sayers, by the bank purchasing the land levied on as the property of *140Sayers for the full amount of its debt, released the surety, and his obligation in tho common-law judgment, satisfied by that sale, can not be revived by setting the sale aside and quashing the return. (Story on Bills, secs. 425 to 429; Chitty on Contracts, pp. 576, 577, 582; Smith’s Com. Law, p. 853; Byles on Bills, p. 243; Philpot v. Bryan, 4 Bingham, 717; Berry v. Stoekwell, 10 B. Mon. 300; Newman v. Hazelrigg, 1 Bush, 412.)
CHIEF JUSTICE LINDSAY
delivered the opinion of the court.
The Farmers Bank recovered a judgment against S. C. & J. C. Sayers and J. M. Collins, in the Kenton Circuit Court, for $1,502, with interest and costs. It sued out execution, and the sheriff levied on thirty-five acres of land, as the property of S. C. Sayers. Sale was made of the land, and the bank became the purchaser of the entire tract for the full amount of its judgment, and the sheriff returned the execution indorsed, in effect, satisfied in full.
Prior to the sheriff’s sale, one of Sayers’s creditors instituted an action in equity in the Kenton Chancery Court, under the provisions of the act of March 10,1856, to prevent fraudulent assignments and conveyances, and alleged that a mortgage, executed and delivered anterior to the accrual of the bank’s execution lien, was made in contemplation of insolvency, and to prefer one or more of the mortgagor’s creditors to the exclusion of others.
After its purchase, the bank, on its own motion, was made a party to this action. It made its answer a cross-petition against Collins and the other judgment defendants. It asked the court, in case it should hold the thirty-five acres,of land purchased as aforesaid, subject to the claims of Sayers’s general creditors, then that it should be allowed to share pro rata in the distribution of the proceeds of Sayers’s estate, as though no sale had been made; and that, as to the judgment debtors, the sheriff’s return be canceled, and it be remanded to all its original rights under its judgment against them. This last relief the chancellor refused, on the ground that the jurisdic*141tion to afford it was in the circuit court; and of this the bank complains.
Courts of equity have always relieved the judgment debtor against execution sales when tinctured with fraud, or unconseientiously oppressive. This is done, not by setting aside the .sale or canceling the return of the sheriff, but by treating the purchaser as holding the title in trust, and compelling him to re-convey upon the performance of such equitable conditions h>y the judgment defendant as the chancellor may find it proper -to impose. But we are aware of no case in which a court of chancery has undertaken to cancel, or correct, or in any way modify the records of a common-law court, in order to enable .a judgment creditor to enforce his common-law judgment.
The dockets of the two courts are, in law, separate and distinct, even when they are presided over by the same judge, and the writs issued by each, and the acts of the ministerial •officers under them, must be set aside or annulled by the court from which they issued. For the purposes of the equity action the chancellor may decline to treat the sheriff's sale as a satisfaction of the judgment; but if the bank desires to be relieved against its effects as to its remedy at law, that relief must be had, if at all, in the circuit court.
This conclusion obviates the necessity of considering the remaining questions presented in the argument of the counsel.
Judgment affirmed.