Bellows v. Administrator of Allen

[175] The opinion of the court was delivered by Redfield, J. The plaintiff proved, that the deputy, Butler, collected the money upon the first execution, and that he had not returned, or paid, the second execution. The defence attempted was, that the plaintiff directed the deputy to sell the property on the first execution on credit, so that the defendant was not liable for the acts of the deputy in regard to that execution, and that both executions had been paid to the plaintiff. The large execution was received by the deputy October 26, 1841. The smaller execution was received on the eighth of October, 1841. It seems, by a memorandum on the large 'execution, that property had been attached upon the writ; but whether the same or any other property was attached on the small execution does not appear. The testimony showed very clearly, that Bellows suffered the sureties in the execution, Bates, Hand, &c., to control the collection of the execution, and finally assigned both executions to Faxon, at their request, taking their note for the balance due upon them, — Faxon signing as their surety. From all that appears in the case we must conclude, that the testimony tended very clearly to show, that the plaintiff did ratify the act of the sureties in directing the deputy to sell on credit. His mere silence, when informed of the fact, would not perhaps be of much importance; but the whole transaction, taken together, shows, that the suit was instituted, the property attached, and sold, at their suggestion, and under their direction, and that subsequently Bellows gave a full ratification of the whole, by assigning the judgment to Faxon in trust for them. And so far as we learn with much certainty, the legal title now remains in Faxon, for the benefit of these same sureties. Under these circumstances it would be wonderful, if the very parties, for whose benefit the suit is now confessedly proceeding, could evade the effect of their own instructions to the deputy. We find no difficulty upon this point of the case. And this, we suppose it fair to understand from the case, extends to all the balance due upon the large execution. If that were not so, we might have some difficulty in saying, that the charge of the court was altogether correct, as to the evidence tending to show payment of this execution. [176] For we think, when property of the principals had been attached by the sheriff’s deputy, and the execution levied upon it, although that property was so disposed of, that the creditor could not pursue the sheriff, on account of his controlling the deputy, yet the debtor undoubtedly might recover against the sheriff, if he gave no consent to a sale on credit. And where the liability of the sheriff is for not applying the avails of property sold, so that, uppn judgment being recovered against him, he would not be entitled to be subrogated to any rights of the creditor, those being in effect extinguished, in such case we think it competent for the sureties to take an assignment of the execution to some third person, for their benefit, upon paying to the creditor the amount due to him, — as was done in the present case. And if they have this right, we do not see any testimony in the present case, tending to show anything else, but such an assignment, or any payment, but to procure such an assignment. As they clearly could thus keep the execution on foot, we see not why they did not do this. But the difficulty with this part of the case seems to us to be, that the case finds, that this property was sold by direction of these same sureties, who now, in reality, claim to recover of the sheriff. As to the small execution, nothing in the case shows, that the sheriff’s deputy ever took property upon it; — of course, the debtors have not paid it. And the sheriff, if he is to be made liable, as it will be for a mere default in not collecting or returning it, upon being adjudged liable would be entitled, to that extent, to be subrogated to the rights of the creditor and go against all the debtors, sureties as well as principals, and thus recover of these same debtors the same money they are now attempting to recover of him. When the same party is virtually both plaintiff and defendant, the action cannot be maintained. For any default of the deputy of this character, we think, as he could claim to stand in the place of the creditor, upon being adjudged liable, it is not competent for the sureties to to take an assignment, even to a third person, for their benefit, of the interest of the creditor; and that, as to this execution, the payment ought to be regarded as an extinguishment of any such claim, as that described in the second count. This reifders it unnecessary to consider the testimony offered to show a re-conveyance to the plaintiff; as, if the sheriff’s liability [177] were once extinguished, it could not be revived by a re-conveyance. But we do not think such a paper, as was offered, any competent evidence of a re-conveyance. Such evidence may sometimes have been received ; but it is evidently the mere declarations of a third person, a matter wholly inter alios. The ground, upon which this last point is decided, was held in a case in chancery in Windsor county some years since. Judgment affirmed.