Opinion
(June Term, 1845.)
Where a sale of property under execution is made by a sheriff or constable, and the property brings more than the amount of the execution, it is the duty of such sheriff or constable to see that the excess is paid to the owner of the property. If he fail to do so, he is liable on his official bond.
APPEAL from CASWELL, Spring Term, 1945; Caldwell, J.
No counsel for plaintiff.
Kerr and Morehead for defendants.
Debt upon a constable's bond, executed by one Hooper in 1837, with the defendants as his sureties. It appeared in evidence that during that year the constable levied an execution in favor of one Gunn, amounting to about $30, on a slave, the property of Anderson, the relator's intestate, and sold the same or about $584. The constable paid Gunn's debt, and also another execution levied subsequently to Gunn's, amounting to about $305. And this suit was for the excess in the constable's hands after paying those two claims. A judgment was taken for the plaintiff for the amount of the excess, subject to the opinion of the court as to the liability of the sureties.
On consideration the court was of opinion that such excess in the hands of the constable was not held by virtue of his office, and that the defendants, therefore, were not liable, and directed the verdict to be set aside and a nonsuit entered. The relator appealed to the Supreme Court.
S. v. Pool, ante, 109, this Court said that a purchaser at a sheriff's sale must undoubtedly pay his bid to the sheriff, and, (358) after getting enough to discharge the execution, the sheriff must see that the purchaser satisfies the surplus to the owner of the property before he can make a conveyance to the purchaser. He (the sheriff) receives the surplus money by virtue of his office; and for all money received by virtue of his office his bond is a security, whether it belong to the plaintiff or the defendant in the execution. The bond of a constable stipulates that he should diligently endeavor to collect all claims put in his hands for collection, and faithfully pay over all sums thereon received unto the persons to whom the same is due. On this bond the act of Assembly (Rev. Stat., ch. 24, sec. 7) declares that suits may be brought and remedy may be had in the same manner as suits may be brought and remedies had upon the official bonds of sheriffs and other officers.
The above decision was made by this Court at the last term, and it is probable was unknown to his Honor when he gave judgment in this case. The judgment of nonsuit must be reversed, and a judgment rendered on the verdict for the plaintiff.
PER CURIAM. Reversed.
(359)