Albrecht v. Long

Gileillan, C. J. The defendant Long was sheriff of the County of Waseca, and Stevenson was his deputy; executions issued against the property of Sherwins were delivered as follows: One in favor of Charles Shedd, to the sheriff himself, at 10:30 o’clock p. m. of March 19, 1877; one in favor of Chancy Hardin et al., and another in favor of J. S. Eicker et al., to the sheriff in person, at 2 o’clock a. m. of March 20 ; and one in favor of these plaintiffs, to the deputy, at '6 o’clock a. m. of the same day. The deputy levied this last execution at half-past six a. m. of the same day, and took possession of the property. About half an hour thereafter, the sheriff levied the three executions delivered to him in person, upon the same property, and, upon his request, the deputy delivered to him the plaintiffs’ execution, and the possession of the property. The sheriff advertised the property for sale under several executions, not naming either of them, and sold the property, and applied the proceeds, after deducting his fees, to the payment in full of the Shedd execution, and the remainder upon the execution of Hardin et al., and returned the plaintiffs’ wholly unsatisfied, whereupon plaintiffs bring suit against the sheriff and the sureties in his official bond. The question presented is, whether the levy of an execution gives the execution creditor a lien upon the property, which entitles him to priority over other executions in the hands of the same officer against the same debtor, delivered to the officer before, but not levied till after, his’? For these executions are all to be taken as delivered to the sheriff. The deputy is not an officer having a separate official existence from that of the sheriff. He is an officer of the sheriff’s, whose powers and duties, so far as they affect the public, it is true, are defined by law. But he holds the office at the pleasure of the sheriff, is appointed and removable by him, and civilly responsible to him, and not to the parties whose writs come into his hands. He must act in the name of the sheriff, and not in his own name. All his acts are, in law, the acts of the shf>*v ,- and the responsibility, civilly, for such acts done [171] within his authority, is that of the sheriff. Our statutes do not, as do the statutes of some of the states, alter in any way the status of the deputy. It is the duty of the sheriff, upon a writ coming into his hands, to use due diligence in the execution of it. It attaches to the writs as they come into his hands, and it follows that it is his duty to execute first those which are first delivered to him. Upon several executions in favor of different creditors against the same debtor, it is his duty to the creditor in that first delivered, to execute that first; and to the creditor in the second, to execute that second; and so through them all. This is the duty he owes to the several creditors. But the rights of the creditors, as against each other, are not necessarily controlled by it. At the common law, an execution bound the goods of the debtor from the time of the teste, even though they were subsequently transferred to a bona-fide purchaser. The statute 29 Charles II., c. 3, § 16, provided that the execution “shall bind the property of the goods against which such writ of execution is sued out, but from the time that such writ shall be delivered to the sheriff, under-sheriff or coroner, to be executed.” Under the common-law rule, the execution operated as a lien in favor of the creditor for the satisfaction of his debt, from the time of the teste, and, under the statute, it operated as such lien from the time of its delivery to be executed. And the latter would continue to be the rule, were it not for the provisions of the statute of this state. Gen. St. c. 66, § 269, enacts that “until a levy, property not subject to the lien of the judgment is not affected by the execution.” So that the creditor acquires a lien on the property, by virtue of his execution, only from the levy. The property is not affected by the teste, nor the delivery to the sheriff. The levy fixes the rights of the creditor as to the specific property. It is argued that the statute 29 Charles II., and the General Statutes were passed only for the protection of bona-fide purchasers, and therefore do not affect the rights of [172] execution creditors as against each other. If this were so, their rights would be controlled by the common-law rule, that the execution binds the goods from its teste, and the execution last delivered and levied might take precedence’ of all the others, because of the priority in its teste. We do not think the statute was intended to operate only as between the execution creditor and a bona-fide purchaser, as claimed, but it was intended to define absolutely, as its language indicates, the rights of the creditor as to the specific property, and as between him and all others. The execution first levied, then, has the first lien on the property, though there may be others in the hands of the sheriff, which were delivered to him before the one levied. Russell v. Lawton, 14 Wis. 202; Knox v. Webster, 18 Wis. 406. The creditors in executions afterwards levied cannot claim to be paid out of the property, until the one first levied is satisfied. This would be so in a contest between the creditors, and it must be so in a dispute between the creditor having the first lien by levy, and the sheriff. The remedy of the creditor in the execution first delivered is against the sheriff. If the latter, through negligence, omit to levy the first execution till a second has been levied, and loss thereby accrues to the first execution creditor, an action will undoubtedly lie. It does not follow, however; from the rule of law that a sheriff and his deputies are regarded as one officer, that where several executions against the same debtor are placed, some in the hands of the sheriff in person, and others in the hands of his deputy, and in consequence thereof, and without actual negligence of the sheriff or deputy holding the execution first delivered, a subsequent execution is first levied, that the sheriff is liable to the creditor in the first execution. When it comes to a question of diligence, the law recognizes the fact that the sheriff and his deputy are different persons, though in theory one officer. And as it does not require impossibilities, it regards the question of diligence in view of [173] that fact, and of what may naturally happen in consequence of it. Russell v. Lawton, 14 Wis. 202; Whitney v. Butterfield, 13 Cal. 335. Order reversed, and new trial ordered.