Sheppard v. Shelton

R. W. WALKER, J. The appellant can take nothing by showing that the court improperly sustained the defendant’s demurrer to the original complaint. He waived his right to review that decision, by amending his complaint, and proceeding to trial upon it as amended. — Stallings v. Newman, 26 Ala. 300. 2. If it be admitted that the amended complaint stated a substantial cause of action, the plea interposed presented a full defense. — Code, § 2446. 3. In Smyth v. Tankersley, 20 Ala. 212, it was said by this court, that “ the sale by an officer, of the entire propert}? in goods owned by two jointly, under an execution against one of them, is an abuse of his legal authority which renders him liable as a trespasser ab initio.” — See, also, Waddell v. Cook, 2 Hill, 49, note (a); Melville v. Brown, 15 Mass. 82. But all the cases, in which this principle has been applied, have been cases in which the suit against the officer was brought, not by all the tenants in common, but only by those who were not defendants in the execution, and whose property had been applied to the satisfaction of a judgment to which they were strangers. We have found no case, in which it has been decided that a sale by the sheriff of the entire property, under an execution against one of several tenants in common, would render him liable to an action by all the joint owners. It seems to us that the demands of justice are satisfied, and legal principles vindicated, by holding that a sheriff, who sells the entire property in a [657] chattel owned by two tenants irf common, under an execution against one of them, is guilty of an abuse of legal authority, which renders him liable to the other joint owner, to the extent of the latter’s interest in the property, as a trespasser ab initio. The sale works a severance of the interests, and the injured tenant in common may maintain a separate action against the officer; but such a sale constitutes no cause of action in behalf of the tenant in common who is the defendant in execution. — See Waddell v. Cook, 2 Hill, 49, note (a); Phillips v. Cook, 24 Wend. 397 ; Owings v. Trotter, 1 Bibb, 157 ; Jones v. Yates, 9 Barn. & Cress. 532; Ladd v. Hill, 4 Verm. 164; Drake on Attachments, § 248, and cases cited; Williams v. Hartshorn, 31 Ala. 155. The facts of the present ease illustrate the propriety of the rule as here stated. The execution was against one of two tenants in common, and the entire property was sold under it for its full value, and the proceeds applied iu discharge of the execution. If the tenant in common whose debt has thus been satisfied by the proceeds of the sale, can now join his co-tenant in an action against the sheriff to recover damages of him for making the sale, it is obvious that the latter would have no right to reduce the demand by setting off the whole or any part of the amount so applied in satisfaction of the judgment against one of the joint owners ; for that would be to set off a demand due by one of two-plaintiffs, against a demand in favor of both of them. A proposition which would lead to a result so absurd and unjust, cannot receive our sanction. So far, therefore, as the act of selling the entire property constituted a cause of action at ail, it was one which accrued to Hopkinson alone; and if that is the gravamen of the action, Sheppard was improperly joined as a plaintiff in the suit. 4. It is provided by section 2446 of the Code, that “lands, slaves, horses, mules, jacks and jennets, wrhen levied on by execution from courts of record, must be sold on the first Monday in the month, at the court-house of the county; other property may be sold on any day except Sunday, either at the court-house, the resi [658] dence of the defendant', the place where levied, or the neighborhood thereof, as may be most expedient.” In reference to that part of the foregoing section which relates to the sale of 11 other property,” it is obvious from the language employed that the sheriff is necessarily invested with some discretion in selecting the place of sale. If he sells property, of the class here designated as “ other property,” at a place not embraced by the terms of the statute, the most that could be said is, that he has been guilty of an irregularity in the discharge of his duty, which would make the sale voidable at the instance of a party to the process, or render the sheriff liable in an action on the case for any actual damages sustained by reason of such irregularity. We do not think that such a sale would constitute the sheriff a trespasser; and consequently the appropriate remedy of the injured party would be neither trespass nor trover, but an action on the case, the gist of which would be the irregular manner in which the sale had been conducted, and actual damage resulting therefrom. It is true, perhaps, that under the Code, the person injured by such irregularity would not be confined to an action on the case; for, by section 130, a recovery for the improperor neglectful performance by a sheriff'of the duties imposed on him by law, may be obtained by an action on his oficial bond, against him and his sureties. McElhany v. Gilleland, 30 Ala. 183. It does not appear that the plaintiff Sheppard has sustained any actual damage, in consequence of the sale having been made at an improper place. But, even if that were shown, it would not in the present case affect the result. For, on the supposition that he has been, actually damaged, the cause of action in his favor is one which grows out of the fact that the sheriff* improperly sold his property at a place not authorized by law, and that he was thereby injured. On the other 'hand, Hop-kinson’s right of action is one which arises out of the act of the sheriff, in selling his property under an execution against another. This right of his does not depend on, and is not affected by the place of sale. Apart from the provision made in section 130 of the Code, the only [659] remedy which Sheppard could have against the sheriff would be an action on the case ; while, on the other hand, that action would not lie in favor of Hopkinson, who could recover in trespass or trover, but not in case. • This being so, it is clear that they cannot join as co-plaintiffs in an action on the bond. Section 130 of the Code was not intended to confer upon persons the right to unite in an action upon the official bond of the sheriff, unless they have a common cause of action, upon which they could at common law have brought a joint action against that officer. ¥e have shown that, if it be conceded that each of the plaintiffs has a cause of action, yet they are separate and distinct causes of action, for which, at common law, distinct and different suits would have to be resorted to. The result is, that there was a clear misjoinder of parties plaintiff, and if the court erred at all in its charges, it was in'favor of the appellants; and they will not be heard to complain of errors which could not prejudice them. Judgment affirmed.