Wheeler v. Kennedy

COLLIER, C. J. — It is objected by the defendant in error, that as his motion was against the sheriff, and as the order of the court was, that the sheriff pay,&c., the plaintiffs could not regularly sue out a writ of error; but it should have been prosecuted by the sheriff. We think this objection is not well taken. The sheriff is a mere holder of the money collected on the sale of the land, in trust for the party entitled to it; and it is immaterial to him who receives it, if it is disposed of according to law. Whether he is warranted in paying the money, under an order of court which is erroneous; or whether he should, for his own indemnity, seek to correct the error, are questions, which need not be here decided. The plaintiffs in error objected to the appropriation asked by the defendant; and presented to the court, the grounds on which they supposed themselves entitled to a preference over him: these grounds were considered, and there determined against them. It then appears that the plaintiffs were admitted as parties litigant in the circuit court; that their interest is really involved, and that a decision has been made against them. Under the influence of the principle, which permits a party in interest, against whom there has been an adverse [294] adjudication in a subordinate court, to seek a revision, we think the plaintiffs might well prosecute a writ of error, in their own •names. The plaintiffs having purchased of the Dunn’s the land, by the sale of which, under Burnett’s execution, the sheriff acquired the money in controversy before the judgment and execution, under which the defendant claims, were either rendered or issued, no lien attached in favor of the defendant, which could have prejudiced the title, acquired under the sale by the Dunns. This being the conclusion of law from the facts in the record, we cannot conceive on what grounds, the defendant sought an appropriation of the money in his favor, unless it was upon the supposition that the land having been sold as the property of the Dunns, the excess yielded after the payment of Burnett’s execution, belonged to them, and was, of consequence, subject to their debts. Such would be the natural inference, in the absence of any adverse interest. . But the claim of the plaintiffs to the money, must be regarded as paramount, to that of the defendant. The defendant could not have subjected the land, to satisfy'the execution in favor of Hanks. If it would have allowed of division, it was the duty of the sheriff to have sold only so much of the'land, as was necessary to pay that execution; but having sold it en masse, and an excess of money remaining in the hands of the sheriff, the party having title, after the lien was discharged, must, upon every principle of reason and justice, be entitled to receive it. Whether the plaintiffs in error, could show, that the execution in favor of HankS, had been paid to the sheriff, though not so returned, is a question on which, it is unnecessary to express an opinion; the merits of the case being disposed of by the question already examined. The judgment of the circuit court is reversed, and as the sheriff is not a party of record, no judgment can be rendered against him here, in favor of the plaintiffs; but they can, if they think proper, proceed in the appropriate court, in order to the ■recovery of the money in his hands.