Marshall ex rel. Vassar v. Stewart

Woods, .C. J., delivered the opinion of the court. If the sheriff, at common law, could be held, on the evidence in this case, guilty of a trespass, in the levy and sale of the personal property, for a conversion, then the obligors in the bond of indemnity are liable in this action, but, otherwise, not. At the time of the levy by the sheriff the trustee was not in possession, nor was he entitled to possession. The debt had not matured, nor had condition been broken, and, hence, there was no trespass in the levy. After levy and before sale, the right to possession in the trustee arose, but he failed to make any demand for possession, and therefore there < was no trespass in the retention of possession by the sheriff before sale. Was there trespass by the sheriff in the sale of the property ? If the sheriff assumed to deal with the entire property in all his proceedings, then there was trespass, though, as matter of law, he finally sold only the equity of redemption of the defendant in execution. That the sheriff did assume to deal with the entire property in his levy and advertisement of sale is, we think, manifest; but, that he abandoned this assumption before the sale was made by him, is equally manifest. It is clear that in the sale itself the officer assumed to deal with the property subject to the deed of trust of Clifton & Eckford. He assumed originally to deal with the entire property: before sale, he abandoned this assumption and, at the last, dealt only with the interest of the mortgagor, the defendant in execution, in the property. Can the officer be denied access to the locus pcenitentice f We think not. After the sale, under the circumstances just referred to, there [188] was nothing, so far as the record discloses, which prevented the trustee from securing the property and subjecting it to the satisfaction of the debt secured by the trust-deed. Note. — In the ease of Marshall, use, eta. v. Stewart, 67 Miss. 494, a suit was brought on the indemnifying bond mentioned in this ease, for the use of Clifton & Eekford, beneficiaries in the trust-deed referred to, and it was held that, inasmuch as the beneficiaries did’not have the legal title to the property, the action could not be maintained. On the trial of this ease, brought by the trustee, the same facts were shown, and, by agreement, the bill of exceptions taken in the other case was used. But a more full statement is made in this case, because deemed material to the points decided. — Rep. Affirmed.