Mullings v. Bothwell

— Stephens J. By the Court. delivering the opinion. We think the Judge was right in making this rule absolute against the Sheriff. He was ordered to seize and sell all of the property, and the mortgage which covered it all, was mentioned to him as a reason for a levy which would have otherwise appeared to be excessive. An additional reason to justify it, was the fact brought forward by the Sheriff as an excuse, that there were older ji.fas to claim the money. The Sheriff decided for himself, that the levy ordered would be an excessive one, and refused to make it. He seems to think, from one execuse which he makes, that the plaintiff had no right to sell more property than what was of sufficient value to be worth the amount of his own fi.fa. This was a great mistake. The plaintiff’s right was to sell property enough to satisfy prior liens, and pay his fi.fa. Another cause shown by the Sheriff was, that it did not appear that there was property enough, if it had all been sold, to pay off all prior liens, and the plaintiff’s fi. fa., and so did not appear to the Court that the plaintiff could have got his money, even if his instructions had been followed. It will be time enough for us to decide the question when it is made, whether the Sheriff may excuse himself for a breach of proper.instructions, by showing that the breach did no injury, but the question made here is, whether the burthen of proof is on the plaintiff in fi. fa., to show that the violation of his proper instructions has injured him. We think not. Before the Sheriff could avail himself of this excuse, it was at least incumbent on him to show affirmatively, that the property pointed out was not sufficient to pay the plaintiff, after first paying the prior liens. This does not appear. The amount [708] of the mortgage lien no where appears, but the older fi.fcis, amounting to eight or nine hundred dollars, were surely not enough to have prevented the plaintiff from making the whole of his money out of eight negroes, four horses, one buggy, fifty-five head of hogs and eighteen cows. The fact that the plaintiff pointed out the property, was an indemnity to the Sheriff for levying on it all, and the Sheriff having made no objection at the time to the sufficiency of the indemnity, can excuse himself for departing from the instructions, only by showing that the instructions were unreasonable, and his own action reasonable and proper under the circumstances, or at least that the plaintiff had received no damage from the course he actually pursued in lieu of that which ho was ordered to pursue. He showed neither the one nor the other. Judgment affirmed.