Opinion
(December Term, 1843.)
1. Where a sheriff, having several writs of fi. fa. and vend. ex. against a person, at the instance of different creditors, takes an indemnifying bond from one of the creditors and sells in consequence of that indemnity, he has no right afterwards to apply to the court for its advice as to the distribution or payment of the money raised by the sale, especially when he has not paid the money into court.
2. Advice given by the court on such an ex parte application would not bind any of the creditors who might still pursue their remedy against the sheriff, if they thought themselves aggrieved by his refusal to pay them.
3. When the court, however, proceeds on such an application to give its advice, the proceeding being ex parte, none of the creditors have a right to appeal.
APPEAL from Dick, J., at Spring Term, 1843, of LINCOLN.
Alexander and L. E. Thompson for plaintiff.
D. F. Caldwell and Hoke for defendants.
At March Term, 1843, of Lincoln County Court, the sheriff returned into court a number of writs of venditioni exponas. and fi. fa. issued from that court against one William Fullenwider, at the instance of different creditors, among whom was the present plaintiff, Jacob Ramsour, and the present defendants. The following return was made by the sheriff on one of the executions, No. 69, in favor of Jacob Ramsour:
"The following executions, to wit, Nos. 71, 72, 73, 74, 75, 87, and 93, against the property of one William Fullenwider, issued from June Term, 1842, of this court, came into my, the high sheriff's, hands. And also two other executions bearing the same teste, in favor of Jacob Ramsour against the property of the said Fullenwider for the sum of $1,131.61, were placed in the hands of one of the deputies (Isaac Lowe) of the said high sheriff. On 3 December, 1842, the said Isaac Lowe, deputy as aforesaid, by virtue of the said two executions in favor of the said Ramsour, and at his special request, levied on and took into (134) his possession the following negroes, to wit, Rosetta, Bob, and Isaac, said negroes then being in the possession of and claimed by one John Hayes as his property. The said Ramsour, before the making of the said levy, gave to the said deputy a bond to indemnify him against the claim of the said Hayes, and without which bond said deputy would not have made said levy. On the following Thursday (it being the court week to which all of the above executions were returnable), as soon as I, the said sheriff, became aware of the said levy, I directed the said Lowe to endorse the like levy on the said executions, to wit, Nos. 71, 72, 73, 74, 75, 87, and 93, and to date said levy as of 3 December, 1842, which was done. The said negroes were sold after due advertisement on 7 March, 1843, and Jacob Ramsour became the purchaser. No bond of indemnity was given or tendered by any of the execution creditors except the one given by the said Ramsour.
Amount of money made by said sale................. $549.00 Retained for fees, commissions and charges........ 47.45 -------- Balance remaining in my hands..................... $501.55
"I had made no appropriation of this sum, and I am ignorant how I should appropriate the same, and I therefore pray the court to direct how the same shall be appropriated. J. R. STAINEY, Sheriff. J. LOWE, Deputy Sheriff.
"The other writs venditioni and fieri facias, viz., Nos. 70, 71, 72, 73, 74, 75, 87, and 93, were endorsed: `The same return made on this as on No. 69; see 69.' J. R. STAINEY, Sheriff. J. LOWE, Deputy Sheriff."
On these returns being made, the counsel of Jacob Ramsour moved that the proceeds of the sale of the negroes set forth in the return of the sheriff be applied to the two writs of venditioni exponas issued at the instance of Jacob Ramsour, viz., Nos. 69 and 70. This motion was sustained by the court and the money directed to be applied accordingly. With this decision, Sarah Young and other execution creditors being dissatisfied prayed an appeal to the Superior Court, which was granted.
In the Superior Court it was adjudged that the money be appropriated to the executions in favor of Jacob Ramsour. From this decision the present defendants prayed for and obtained an appeal (135) to the Supreme Court.
This case is, in substance, an application to the court by the sheriff for information how he ought to make his returns upon the several executions which are in his hands. It is not like Yarborough v. Bank, 3 N.C. 23, where the money was paid into court. The sales amounted only to $501.55. Ramsour, one of the execution creditors to the amount of $1,131.61, gave the sheriff a bond of indemnity to levy at his instance on the slaves as William Fullenwider's property. The sheriff says that as the said slaves were then in possession of one Hayes, under a claim of title, he should not have made the levy without the said indemnity. He has not abandoned his indemnity; and as he has hitherto gone on and made his levy and sales, clinging to his indemnity, we think that he has no right in this stage of the proceedings to ask the Court how he ought to make his returns so as to secure himself from any liability to the dissatisfied creditors. As he is acting under a bond of indemnity, the Court cannot interpose by rules on the parties, but he must make his returns on the executions upon his own judgment and at his peril. Upon such an ex parte application by the sheriff, the creditors would not be concluded, and if the officer chose to abide by an opinion given to him by the court, one of the creditors could not appeal therefrom. Whether, therefore, the court was right or not in thinking that the indemnifying creditor had a right to the money raised by the sheriff, the other creditors could not try the question in this form, the sheriff still holding the money in his own hands. As between the sheriff and Ramsour, the former might have been bound to pay the money to the latter by what had taken place between them, while (136) the sheriff might also be liable in law to pay a share thereof to the other creditors, if in truth the negroes were Fullenwider's, and not Hayes's. But that question must be tried in the proper manner. This is not the proper mode of doing so, because when a sheriff acts under an indemnity he does so at the risk of the indemnifying creditor, whose interests the sheriff thereby undertakes to subserve. He does not stand before the court in such a case merely as an officer, and therefore the court is not bound to advise him. But if the court should advise him to conform to the obligations arising out of the indemnity, it leaves the other creditors unaffected by that advice, and they cannot appeal. While, therefore, we think that the court ought not to have made the order on the sheriff to return the money as Ramsour's, we likewise think that the appeal ought not to have been granted to Young and others, and that it should have been dismissed and with costs in the Superior Court.
PER CURIAM. Reversed.
Cited: Dewey v. White, 65 N.C. 229; Bates v. Lilly, ib., 233; Millikan v. Fox, 84 N.C. 110.