Tullis v. Brawley

By the Court — Emmett, C. J. The Defendant was lately Sheriff of the county of Ramsey, and as such had sold at public [284] auction, to satisfy an execution then in his hands for collection, certain book accounts, or debts due on account, belonging to one Reuben Rail, the Defendant in the execution. The Plaintiff was the purchaser, at the Sheriff’s sale, and commenced this action in the county of Hennepin to recover back the purchase money paid. • The complaint alleges that the Defendant pretended that he had duly levied upon said debts, or book accounts, and had good right to sell the same, whereas he had not in fact levied, and the Plaintiff took nothing by his purchase. The Defendant in answer sets forth the execution upon which the sale was made, and avers that he duly levied the same upon the debts or accounts before mentioned. He denies that he made any representations as to his levy, and avers that the bidders at the sale were distinctly warned that they must run their own risk as to his right to sell. There are other allegations and denials in the pleadings, but they are not material to the questions presented here. On the trial, the Sheriff’s return to the execution was read in evidence, wherein he certifies that he “ levied this execution upon the books of the said R. Ball, the within named Defendant, and sold the same pursuant to law for the sum of two hundred and thirty dollars, and out of the proceeds of said sale satisfied this execution.” This return the Plaintiff contended was insufficient, and proved nothing, because it did not set forth specifically the facts constituting the levy; while on the other hand, the Defendant insisted that a general return was sufficient, and was conclusive of the fact of a levy, and could not be impeached in this action. It is a well established general rule, that the return of a Sheriff, so far as it is evidence of formal proceedings, is conclusive upon parties, privies, and prima fade upon stangers, and that it is not liable to impeachment, except in direct proceedings in which the officer is a party. Aside from the fact that the officer acts under oath, and that a party inj ured by any act or omission has an ample remedy against the Sheriff and his sureties, by an action for a false return, such a rule seems necessary to give validity and effect to the acts of ministerial [285] officers, and to protect purchasers at judicial sales, who are not supposed to have knowledge of, and of course ought not to be prejudiced by the misconduct or omissions of the officer. All that the law requires of them, is to ascertain whether the officer has a valid writ authorizing him to sell, issued upon a valid and subsisting judgment. Everything else is a matter entirely between the party injured and the Sheriff and his sureties. Any other rule would deter purchasers and prevent property from selling at its real value. Nor do we consider it necessary, under our statute, that the Sheriff should in his return state the particular or several acts done by him in making his levy. It is sufficient if he certifies? in general terms, that he “ levied,”’and from this all the necessary proceedings will be implied. It was insisted on the argument that the case of Symonds vs. Castner et al., 1 Min. Rep. 427, was an authority the other way, but it will be observed upon an examination of that case that the late Supreme Court of the Territory never passed upon the execution. When the case was called up for hearing, the Appellants raised objections to the jurisdiction of that tribunal which were overruled, and thereupon, the Appellants declining to go to a hearing, or to argue the case, before that Court, the decree of the District Court was affirmed under the rules, without an examination of the case. The case cannot, therefore, be said ever to have been adjudicated in any but the District Court, and cannot be considered as authority on the points involved. In this connection, See. 91 of Ohap. 71, Bev. Slat, of 1851, has been referred to, and because that section declares that property is not affected by the execution until a levy is made, it is claimed that if the Sheriff omits any act essential to a levy, he cannot aid the omission by a general return, and the property therefore cordd not legally be sold; but we do not so construe the section referred to. It is as follows : “All property liable to attachment is liable to execution; it must be levied on in the same manner as similar property is attached; until a levy property is not afeoted by the execution..” To give the last clause the literal construction above [286] claimed, any actual omission would be equally fatal to the validity of the sale, whether the act omitted were generally or specially returned as having been done. Under such a construction the Sheriff’s return would not be conclusive evidence of any official act connected with the levy, and might always be impeached. ¥e do not think the Legislature intended so radical a departure from the wholesome rule before stated. The clause of the section referred to evidently applies only to a levy upon personal property, or such as is not subject to the lien of the judgment; for as the great object of a levy is to take property into the custody of the law, and by this act of the officer render it liable to the lien of the execution, thus putting it out of the power of the judgment debtor to divert it to any other use or purpose, there could be no possible motive for requiring a formal levy on property which is already subject to the lien of the judgment by virtue of the statute itself, and is entirely beyond the control of the judgment debtor. It seems to us that the clause in question was added to prevent the many and vexatious litigations that might otherwise have arisen out of transfers of personal property made, after the issuing, but before the levy of an execution, by declaring, in substance, that the execution shall not be a lien on such property, or in the exact language of the stacute, that, “until a levy property is not affected by the execution.” Had the Sheriff therefore returned, in this case, that he had levied on the several debts in question, we should, in the absence of fraud or complicity with the purchaser, have no hesitation in holding the levy and sale valid, leaving the party injured to his remedy against the Sheriff and his sureties. But he does not so make his return — he simply certifies that he “ levied upon the ‘books’ of the said B. Ball ” — not upon the debts due to him on account, nor upon the debts due him from A and B, nor even upon the “account books” of the said Ball. Taking therefore this return to be conclusive as to the facts therein stated, it does not, by any means, show a levy upon the property described in the pleadings, and cannot of itself furnish any defence to this action ; and as the question [287] of a levy was a fact at issue iu this case, which the jury upon evidence presented to them, found agaiust the Defendant, we do not feel authorized to disturb the verdict. After the trial and upon a motion for a new trial, the Defendant raised a question of jurisdiction, claiming that the action could be commenced in Kamsey County only, because the statute provides that an action against a public officer for any act done by him in virtue of his office, must be tried in the County where the cause of action or some part thereof arose. "We have no doubt that had the objection been urged at the proper time, it would have been good, but regarding the statute as conferring a personal privilege only on the officer, which he may waive if he sees proper so to do, we think the objection comes too late. The other errors assigned are involved in the decision of those already considered. The order of the District Court denying the motion for a new trial is affirmed, with costs.