Since a judgment, though erroneous, is valid and binding until it is reversed, the judgment creditor commits no wrong in proceeding to enforce it. In case of a subsequent reversal, therefore, he should not be held liable for damages resulting from its enforcement.7 The extent of his obligation is to restore that which he realized from its enforcement. Where the judgment is satisfied by the payment of money to the creditor, the measure of recovery obviously is the amount paid. Where property, instead of money, is taken by the creditor, he should restore the value of the property at the time of its receipt. Where property of the debtor is sold upon execution and the proceeds paid to the creditor, the measure of recovery, upon principle and by the weight of authority, is the amount actually realized by the creditor, and not the value of the property at the time of sale.1 In the cases to the contrary,2 it is pointed out that if the property were sold for less than its value it would be a serious hardship to allow the judgment debtor to recover only the proceeds of the sale. But there seems to be no sufficient reason for shifting the hardship to the shoulders of the judgment creditor, who is benefited only to the extent of the proceeds of the sale.

1 Maghee v. Kellogg, 1840, 24 Wend. (N. Y.) 32; Langley v. Warner, 1850, 3 N. Y. 327; Catlin v. Allen, 1845, 17 Vt. 158. But see Little v. Bunce, 1835, 7 N. H. 485; 28 Am. Dec. 363.

2 Florida, etc., R. Co. v. Bisbee, 1881, 18 Fla. 60; Fidelity Trust, etc., Co. v. Louisville Banking Co., 1900, 119 Ky. 675; 58 S. W. 712; Dennett v. Nevers, 1831, 7 Me. 399.

3 Catlin 9. Allen, 1845, 17 Vt. 158. And see Ex parte Morris & Johnson, 1869, 9 Wall. (U. S.) 605.

4 Wright v. Aldrich, 1880, 60 N. H. 161; Green v. Brengle, 1888, 84 Va. 913; 6 S. E. 603.

5 Bank of the United States v. Bank of Washington, 1832, 6 Pet. (U. S.) 8; McDonald v. Napier, 1853, 14 Ga. 89; Wright v. Aldrich, 1880, 60 N. H. 161; Langley v. Warner, 1850, 3 N. Y. 327; Butcher v. Henning, 1895, 90 Hun (N. Y. Sup. Ct.) 565; 35 N. Y. Supp. 1006. But see Penhallow v. Doane, 1795, 3 Dall. (U. S.) 54.

6 Balls v. Haines, 1852, 3 Ind. 461; Peck v. McLean, 1886, 36 Minn. 228; 30 N. W. 759; 1 Am. St. Rep. 665; Isom v. Johns, 1811, 2 Munf. (Va.) 272; Eubank p. Rail's Extr., 1833, 4 Leigh (Va.) 308. And see Catlin v. Allen, 1845, 17 Vt. 158.

7 Bridges v. McAlister, 1899, 106 Ky. 791; 51 S. W. 603 ; 45 L. R. A. 800; 90 Am. St. Rep. 267. But see Reynolds v. Hosmer, 1873, 45 Cal. 616.

The obligation to make restitution arises when the judgment is reversed, and interest from that date should be allowed.3

Where property is sold in execution of a judgment that is void and not merely erroneous, the judgment creditor is a wrongdoer, and may be required, at the election of the owner, either to pay over the proceeds of the sale with interest from the time of receipt or to compensate him in damages for the loss of the property. And if the latter remedy is chosen, the measure of damages is the value of the property at the time of the sale.4

1 Bridges v. McAlister, 1899,106 Ky. 791; 51 S. W. 603; 45 L. R. A. 800; 90 Am. St. Rep. 267; Schnabel v. Waggener, 1904, 118 Ky. 362; 80 S. W. 1125; (but see Maynard v. May, 1894, 16 Ky. Law Rep. 690; 25 S. W. 879); Bryant v. Fairfield, 1863, 51 Me. 149,154, (semble); Peck v. McLean, 1886, 36 Minn. 228; 30 N. W. 759; 1 Am. St. Rep. 665; Gay v. Smith, 1859, 38 N. H. 171; Bickerstaff v. Dellinger, 1809, 1 Murph. (5 N. C.) 272.

2 Western v. Creswick, 1693-94, 4 Mod. 161; Hays v. Cassell, 1873, 70 111. 669; Smith v. Zent, 1882, 83 Ind. 86; 43 Am. Rep. 61; Thompson v. Thompson, 1793, 1 N. J. L. 159; Cleveland v. Tufts, 1888, 69 Tex. 580; 7 S. W. 72.

3 Florence Cotton, etc., Co. v. Louisville Banking Co., 1903,138 Ala. 588; 36 So. 456; 100 Am. St. Rep. 50.

4 Duff & Repp Furniture Co. v. Read, 1906, 74 Kan. 730; 88 Pac. 263.