Kirkpatrick v. Black

The opinion of the court was delivered by Gibson, C. J. When not transcending the mandate of his writ, the sheriff may be considered in some degree as the creditor’s agent. Thus, payment to him on the foot of a fieri facias, discharges the debt, though the command is to get the money only by a sale of the debtor’s goods; and the creditor’s further recourse is to the sheriff. As to levy, time, place, and circumstances, the doing of execution is generally under the superintendence of the judgment creditor; and the sheriff acts, in these matters, so invariably by direction of the attorney, that in whatever involves an exercise of discretion based on a knowledge of particular facts, a presumption may be said to arise from the usual and natural course of such transactions, that he acted in conformity to the creditor’s wishes. In particular cases however, such as those of conflicting executions in his hands at the same time, he acts at his peril and of his own head. But in respect to no particular of his duty, does the presumption of special instruction arise with greater force, than in respect to a levy of land. The sheriff’ usually knows absolutely nothing about the description and quantity, or about the title; and he returns his levy according to the facts given to him by the person who sued out the execution. The creditor is the controller of it; he applies it in the way most conducive to his interest; the sheriff is bound to respect his instructions; and is not the sheriff’s act, done pursuant to his command, also his act? The conclusion will not be disputed, if the fact of instruction be conceded; but it may be said that the presumption of it, being a natural one and going for just what it is worth in the estimation of a jury, is not a ground of legal inference. Granted. But if the judgment creditor has caused his own land to be levied and sold, even by inadvertence, who ought to bear the consequences of it? Evidently he whose act, however unintentionally, occasioned it, and it is impossible to say the efficient cause of the mischief, in this instance, was not the act of him who sustained the double character of execution creditor and part owner. His debtor was in the ostensible possession of a tract of four hundred, acres — the statutory allowance of one who settles for his own use — but beneficially entitled ouly to a fourth of it, for having performed the condition of settlement for the creditor as a warrantee. Now the whole of this tract was levied on as the absolute property of the debtor; and to prevent misconception from a measure so fraught with it, it was the duty of the creditor, informed as he was of the circumstances, to furnish the sheriff with a particular description of the interest directed to be levied. It will not be said the sheriff might have disregarded an order to insert it. Had he done so, the court would have set aside the levy; and for the same reason the creditor ought to have had the error of the [333] sheriff, if his it was, corrected in this instance; instead of which he did the very reverse. On the basis of a deceptive levy whose falsehood stared him in the face, he sued out a venditioni exponas, and thus, whatever it was originally, made the act of the sheriff his own. Thus proceeding on a levy of the whole tract, and knowing, as he did, the debtor to be entitled only to a part of it, he was guilty of a constructive fraud depending, not on a natural presumption, but on facts of record whose legal consequences are determinable by the court: and what is the difference between such a judgment creditor and a by-stander who conceals his title? The one is present at the instant of the sale; the other, with knowledge of the erroneous pretension on which it is based, urges it on; but each is passive when he ought to act, and each is to be postponed to a purchaser who would else be a loser by another’s supineness. On that head, the direction was entirely proper; nor in regard to the purchaser’s supposed knowledge of the truth of the case, was it less so. The creditor might have had his motives for letting the whole be sold together; and it was not the purchaser’s business to inquire into them; he had no reason to suppose, the creditor would else be so improvident as to propose a sale of his own estate. Such a sale, however, he did propose; and the purchaser, having the assurance of the levy and venditioni, that such was the fact, might securely bid to the value. Judgment affirmed.