#### Hamilton v. Shrewsbury.

August, 1826.

Executions* — Proceedings Thereunder Void — Effect.—If the proceedings under an execution are wholly void, no title passes by the sale to the purchaser, and the defendant may have redress in an action of detinue, and a Court of Equity has no jurisdiction.

Same — Sale Thereunder Void — Misconduct of Sheriff— Equity Jurisdiction. — If the execution is valid so far as to bind the property, but the sale under it is void, on account of the interest or improper conduct of the sheriff, the Court, from which the execution issued, may correct the abuse of its own process, by quashing the execution, &c. and there is no ground for equity to interfere.

Same* — Improper Conduct of Sheriff — Effect on Purchaser without Notice. — A fair purchaser under a sheriff’s sale, without knowledge of any improper conduct on the part of the officer, acquires a valid title to the property purchased, and the remedy of the party injured is, by action at law, for damages, against the sheriff. The same remedy applies where a sheriff has improperly refused a forthcoming hond, when he ought to have received it.

Appeal from the Chancery Court of Greenbrier.

Hamilton filed a bill against Reynolds, Waugh, and Donnally, to injoin a judgment obtained by Waugh against him. The bill states, that the complainant, with two others, being appearance bail for Stuart and Dennison, judgment *was 'rendered against them, for failing to enter special bail: that an execution having issued against Stuart and Dennison, and no property being found, the deputy sheriff, Reynolds, required the sureties to pay the money: that, accordingly, one of the bail paid his proportion, (one-third) and the complainant paid his proportion by an arrangement between him and the sheriff, which was fully satisfied: that the third person, who was appearance bail, also made an arrangement with the sheriff, by which his proportion was satisfied; so that the execution was completely discharged : that, notwithstanding these transactions, the said Reynolds returned the execution, allowing a credit only for a small part of the amount paid, and levied it on a slave of the complainant who had run-away: that these proceedings took place at the instance of Donnally, to whom, as was alleged, the benefit of the said execution had been transferred; that the complainant understands that it is the intention of the said Reynolds to proceed to the sale of the said slave, &c. He therefore prays,, that the proceedings on the said execution-may be stayed, &c.

The injunction was granted.

The complainant afterwards filed an amended bill, stating, that the said Reynolds had sold the slave above mentioned under the execution, and Shrewsbury became the purchaser for $525, although he was worth more than $1000; that the slave was not present when sold, the said Reynolds having permitted him to elope; that previous to the day of sale the complainant had offered to execute a forthcoming bond, so as to leave the slave in the possession of the complainant; but the said Reynolds, after having at first consented to receive it, afterwards refused; that the said slave is now in the possession of Shrewsbury, who receives his services worth $18 per month; that the complainant apprehends, that the said Shrewsbury may remove him. He therefore prays, that Shrewsbury may be made a defendant to the suit.

*The answer of Reynolds denies, that any credit ought to be allowed to the complainant, as stated in the bill, and enters into a detail of circumstances to establish his denial; that it was by the complainant’s own act, that the credit was not allowed on the execution; that at one period, the execution was acquired by the respondent, but it was afterwards, wholly transferred to the said Donnally; that the said Donnally sued out an execution, and placed it in the hands of the respondent, as deputy sheriff, and caused it to be levied on the said slave, who was duly advertised and sold for $525 cash, and Shrewsbury became the purchaser; that previous to the sale, the brother of the complainant offered himself and another, as sureties in a forthcoming bond; but, the respondent refused to receive them, as being insufficient, which he believes to have-been the fact; that he admits, that at the moment of the sale, the said slave was not present, but he had been within an hour or half an hour before; that just before the sale began, the boy absented himself, but without the knowledge nor even suspicion of the respondent, of his so doing or intending to do so; and he came in within a few hours after the sale was over; but, his absence did not occasion the smallest diminution in the price, for which he sold; that he was well known to all present, having been a servant in a tavern at Charleston for many years; that the sum of $525 was the-full value of the said slave, &c.

Depositions were taken, and the cause coming on to be heard, the Chancellor decreed that the bill should be dismissed as to the defendant Shrewsbury, and the cause retained in Court against the other defendants, for accounts, &c. Prom this decree, the plaintiff appealed, so far as it dismissed his bill as to Shrewsbury.

Heigh, for the appellant.

Johnson, for the appellee.

*The counsel for the appellant made three objections to the decree:

1. The sale was void, because the deputy sheriff had no right to sell the property, he being interested in the execution as the *169assignor ofDonnally, and therefore responsible to him, if the execution proved fruitless.

2. The deputy sheriff acted improperly in refusing the security tendered on the forthcoming bond, who was amply sufficient, as the evidence proves. The sale was therefore void, and no title passed to Shrews-bury.

3. The slave was a run-away at the time of the sale. This was irregular. The property must be in the actual possession of the sheriff, and present at the sale. He is bound to keep the property securely. This circumstance rendered the slave much less productive than he would have been, if he had been present, as is proved by the evidence.

*

See monographic *note*on "Executions” appenfled to Paine v. Tutwiler, 27 Gratt. 440.

August 2.

JUDGE CABELL

delivered his opinion, in which the other Judges concurred.*

The sheriff of Kanawha county, by virtue of an execution against the goods and chattels of the appellant, sold a slave belonging to the appellant, at public sale, and the appellee became the purchaser thereof. The object of the bill, in this case, is to recover back the slave; and the question is, whether a Court of Equity ought to interfere for that purpose, under the circumstances attending the case.

The sale is objected to on three grounds: 1. That the deputy sheriff was so interested as to be incapable, in point of law, of acting as sheriff on this execution; he having once owned, and having assigned the judgment: 2. That the sheriff refused to receive from the appellant, a forthcoming bond with good security: and 3. That he sold the slave without having him present at the time and place of sale, the said slave having previously run-away.

*There is no allegation in the bill, of any fraud or collusion in the appellee, nor of any knowledge by him of any fraud or improper conduct on the part of the sheriff.

If the proceedings under the execution were wholly void, no title passed by the sale to the purchaser, and there was no impediment to an action of detinue in a Court of Law.

If, as was contended by the counsel for the appellant, the levying of the execution was so far valid as to bind the property, but the sale thereof was void on account of the interest or improper conduct of the sheriff who made the sale, still the appellant had complete redress at law. The Court, from which the execution had issued, would, on application, have corrected the abuse of its process, by quashing the execution, setting aside the sale, and restitution of the property might have been enforced at law.

In neither event, therefore, ought a Court of Equit3r to interfere.

But, I am clearly of opinion, that the title to the property passed by the sale to the appellee. He is a fair purchaser, without imputation of fraud or collusion, and without knowledge of any improper conduct on the part of the officer.

The mere circumstance of the sheriff having sold the property without its being present at the time and aplace of sale, is not, of itself, sufficient to vacate the sale. Such sale may, under circumstances, be right and proper. There is no proof of such loss to the appellant, as would justify the Court of Equity to interfere, even!if it had jurisdiction. If the sheriff hasTMbcen guilty of improper conduct in this respect, or in refusing to receive a delivery bond when he ought to have received it, he is responsible for damages in an action at law, to those who may be injured.

This case is very different from that of Carter v. Harris, lately decided in this Court. In that case, the sheriff was the plaintiff in the judgment. He sold the property under the execution, and became himself the purchaser, *after having fraudulently taken measures to prevent others from bidding, or giving a fair price for it. It was his own personal fraud that justified the interference of equity. There is no such ingredient in this case, and the decree ought to be affirmed.

*

The President and Judge Goat,ter, absent.