#### *G. W. Cooper vs. W. R. Scott.*

*A*sheriff is bound to take notice of the liens in his office, and to pay money collected by him under official authority, to the oldest execution. And when he pays money to a former execution, he does so at his own risk, and he will be held liable for the consequences either by rule or action at law. *See Act*1839, 21 *sect. p.*30, *defining sheriffs’ duties.*

2. When there is a contest for money, collected by a sheriff in his official capacity, he is a stake holder and must hold his hand (but in good faith and without collusion with either party) until the adverse claims are subjected to adjudication.

3, A rule will always go where die legal rights of the parties can be made to appear from a conceded statement of facts. But where the facts are disputed, and the law depends on their developement, the parties should be left to their action at law, or an issue will be directed at law to try them.

*Before*Richardson, J. *at King’s Tree, Spring*Term, 1841.

The defendant was indebted to the plaintiff, by judgment, to .the amount of $800, for which a *fi.fa.*had been sued out, and lodged in the sheriff’s office on the 19th November, 1839. The plaintiff had also recovered judgment for the same debt, against Dr. W. J. Buford, who was surety of the defendant, W. R. Scott, for the said debt. There were other executions in the sheriff’s office against W. R. Scott, in favor of other creditors, to the amount of $550, of the same date with that of the plaintiff, G. W. Cooper; and there were junior executions against him, to a considerable amount, but no senior unsatisfied judgment *151or execution. At this term, the plaintiff, G. W. Cooper, took out a rule against the sheriff, to shew cause why he had not made the money under the said execution. The rule was taken out at the instance of Dr. Buford, whose counsel were present and joined in the conduct of the proceedings under the rule. These proceedings, and the questions made in them, will he fully uderstood from the report of his Honor, the presiding Judge, which is' as follows.

This was a rule upon the sheriff of Williamsburg district, as follows: on motion of Ilarllee and Rich, plaintiff’s attorneys, it is ordered, that the sheriff, Solomon Coward, do shew cause, on to-morrow morning, at 10 o’clock, why he has not made the money in the above stated case, and particularly why he has not applied the proceeds of the sales of the following property, sold as defendant’s, under executions in his office, to the above case; to wit, Jacob, sold for $721, Milly, and Dolly, for $501, Beck, for $665, Lucy, for $256, three hundred and seventy-five acres of land for $260, three horses, for $98, and a riding chair, for $36, and some cattle: the said sales amounting, besides the cattle, to twenty-five hundred and thirty-seven dollars.

To this rule, the sheriff returned, that he had sold the property mentioned in the rule, under the execution above stated, and sundry other executions in his office, against the same defendant, many of them of the same date with the execution of G. W. Cooper. But that there were mortgages of the said property, given by the defendant, of a prior date to the date of the lodgment of the executions against the defendant, in his office. That at the time of the sale, the morgagees were present with their mortgages; that they consented to the sale, with the understanding, as the sheriff supposed, with the plaintiffs in execution, and himself, that the proceeds of sale should be first applied to the mortgages. The plaintiff in execution, G. W. Cooper, was not present at the sale, but, after the application of the funds, informed the respondent, that he was satisfied. The respondent applied, and paid the whole of the funds, with the exception of about $300, to the payment of the mortgages, believing that he was doing what was equitable and right.

*152To this return the plaintiff excepted, as insufficient, be* cause the sheriff had not returned and accounted”for the sale of Rose and her children, made 6th January, 1840, amounting to $1131.

Upon which the sheriff amended his return, as follows:

The sheriff further returns, after hearing particularly what was further required by the plaintiff’s counsel, that he levied on a negro woman, Rose, and children, as property of the defendant. That he offered them for sale, and the sale was forbid by J. T. Scott, who claimed them, as trustee, under a deed of trust in favor of the wife of defendant. The sheriff stopped the sale, as the deed was older than the cause of action in said execution, and he immediately notified the plaintiff that he would not sell without indemnity; but the said plaintiff said he would not give a bond of indemnity, as he would not risk it. Thé negroes were afterwards put up by the sheriff on executions of Chandler and Graham, the causes of action being older than the deed, by consent of the trustee; and the proceeds of sale, by consent of the trustee, were paid to the said cases, leaving a balance in the hands of the sheriff of $371,73, which the trustee is demanding, and the execution creditors have forbidden him to pay to the trustee. He has the balance, ready to pay, when he can do so under protection. He has also in his hands sundry executions of same date as plaintiff’s, against defendant.

The sheriff submits that he is not in contempt. He has done every thing in his power to make the money of plaintiff out of defendant, and it has not been in any way his fault, that the property of defendant was incumbered, so as to be beyond the reach of plaintiff’s execution. He respectfully submits, that it is a contest for the money between the creditors and the trustee, and that he is not in fault, or contempt. He refers to his whole course, as sheriff,-to testify that it has been his pride to perform his duty, so as never to be in contempt'of the Court of which he is the executive officer.

The Court saw nothing in the proceedings to induce the supposition, that the sheriff had committed any contempt, and the Court would not impose any penalty or punishment upon its officer, where it appeared that there *153was no contempt committed by the officer to the authority of, or in violation of the respect due to, the Court.

Upon this ground the rule was discharged. The plaintiff appeals upon the grounds annexed.

The plaintiff, *G,*W. Cooper, on behalf of Dr. 'W- J-Buford, appeals from the decision of his Honor dismissing the rule, and moves that the same may be reversed; and that the sheriff may be ordered to pay over so much of the moneys in his hands, arising from the sales of property mentioned in the said rule, and his returns thereto, as will be sufficient to satisfy the amount due on the plaintiff’s judgment at the time when the said rule was argued in the circuit Court, with interest and costs. And in support of his said motion, he relies upon the following grounds:

1. That in making sale of the property alleged to have been mortgaged, the sheriff sold, and could sell, nothing but the equity of redemption, and the proceeds of the sale were, therefore, applicable to the plaintiff’s execution; and that- his payment to the supposed mortgagees could not exempt him from the performance of his official obligation to pay over the said proceeds to the satisfaction of the executions in his office, according to their legal priority.

2. That if a voluntary conveyance be fraudulent and void as to an existing creditor, it is void as to all creditors; and where a subsequent creditor has acquired a prior lien by judgment and execution against the donor, if the property which forms the subject of the gift, is sold under a junior execution of the existing creditor, the subsequent creditor is intitled to the proceeds, by virtue of the lien of his prior execution. And whether the gift be fraudulent and void, or not, if the property is sold as the property of the defendant, and under execution against him, the proceeds must be applied to the senior lien in the sheriff’s office.

3. That the sheriff is bound to apply the proceeds of property sold by him to the oldest lien in his office, and he has no authority to look into the causes of action for the purpose of administering a fanciful equity. And to permit him, in violation of the plain rules of law, to pay *154a junior execution, and put an older execution creditor to his action, on the plea that he intends ■ no disrespect to the Court, would he to place parties at the mercy of sheriffs, and render the law for the recovery of debts wholly nugatory.

4. That the right of the plaintiff in an execution to a rule against the sheriff, for the payment of money in his ' hands, depends upon his title to the money, and not upon the sheriff is having been guilty of a positive contempt, or intentional want of respect to the authority of the Court.

Bailey, for the motion,

cited on the 1st ground 2. Bail. 18; on 2nd *&*3rd ground cited 2 Bail. 128, l'Bail. 337, Bail-Equity, *Izard vs.*Izard, 1 Bail. 158, 1 Hill, 69. On the 4th ground.- If it appear (upon a rule) clearly the right of the plaintiff, the sheriff is in contempt if he does not pay over the money he has collected, 2 Hill, 502, 1 Bail. 605, Acts of 1839 sect. 19, 20, 21, Act concerning sheriffs, 1 Bail. Equity, 137.

Mr. Yeadon, contra,

1st ground, plaintiff was satisfied, 1 Tread. Con. Rep. 151,2 Rice Dig. 275, Harp..L. R. 389,2nd *&*3rd grounds. The plaintiff refused to indemnify the sale agianst the trust deed. The sheriff acted as agent of the trustees. The sheriff had no right to decide whether-.the deed was or was not void; 4th ground ; cited 1 Con. Rep. Mills, 145; it was a question of right, 1 Hill, 145, 2 Rice’s Dig. 272, Dud. L. Rep. 292.'

*Curia, per*

Butler, J.

The names of the parties in this case, were used to enable Dr. Buford to make a motion for his own benefit, and not so much for the purpose of punishing the sheriff, as to have the money raised by him properly applied. At the time the .motion was made, Dr. Buford was equally liable with the defendant to pay the debt under *fi. fas.*against both; against the one as principal, and the other as security. These were the oldest *fi. fias,*in the office, affecting the defendant, W. R. Scott’s property, and if the money raised by the sheriff had been applied to them, they would have been entirely satisfied, and their liens extinguished.

It is now too well settled to admit of controversy, that *155a sheriff is bound to take notice of the liens in his office, and to pay money raised by him under official authority, to the oldest execution; and when he pays money to a junior execution, he does so’ at his own risk, and will be held liable for the consequences, either by rule or action at law. His liability to be ruled, is explained and defined in the 21st sec. of the Act of 1839, page 30 — “If any sheriff shall fail to execute and return final process in any civil suit, or to pay over money when demanded, that has come into his hands as sheriff, to the party entitled thereto, and shall be unable, on the return of the rule to be issued against him to shew sufficient cause, he shall be liable to be attached for a contempt, and may be ordered by the Court in which such suit has been brought, to pay the debt and costs, (fee.”

The party entitled to the money, should always have it paid over to him when demanded. When there is a contest for the recovery by different *bona fide*contending parties, it is sometimes not very easy to say who is entitled to receive it. In such cases, the sheriff should be regarded as a stake holder, and should hold his hand until the adverse claims are subjected to adjudication-. This he must do entirely in good faith, and without collusion with either party. In most cases of dispute, he can judge for himself; and when right, he will, as a matter of course, be protected by the judgment of the Court — and when he withholds money from a party entitled to it, he will not always be exempt from the summary operation of a rule, by shewing in his return, that he had acted in good faith, and did not- intend a wilful contempt of the Court. A rule will always go where the legal rights of the parties can be made to appear from a conceded statement of facts. But where the facts are disputed, and the law depends on their developement, the parties should be left to their action at law, or should enter into a consent rule to make up an issue to ascertain their rights.

We think the sheriff was right in first satisfying the mortgages that were put in his hands, as they were older than the *fi. fas.*in his office, and operated as liens on some of the property sold. The mortgagees were present, and it seems, consented to release their lien, by taking the pro*156ceeds of the property sold. It was competent for them to do so ; and the sheriff, having acted as their agent, was justifiable in satisfying these claims in preference to the execution creditors. After satisfying the mortgages, the balance of the money in the sheriff's hands should have been paid to the oldest execution — provided, it was raised by the sale of the defendant’s own property. For I think it would be in the power of a third person to suffer his property to be sold, to pay the debts of the defendant in execution. In such case, he could pay the junior execution in preference to the senior *Ji.fa.,*and could, if there should be a surplus, direct the disposition of the balance in the sheriff’s^ hands to his own use. I understand from the return of the sheriff, that he appropriated the money arising from the sale of Rose and her children, to a junior execution, at the instance of J. T. Scott, who claimed the negroes as trustee. That is, as legal owner of the property, he suffered it to be sold to pay the debt of W. R. Scott, upon the ground that his legal title was not perfect till that debt was paid. But he contends, that as it regards this judgment of which Dr. Buford is assignee, Rose and her children never were, in fact, liable to its lien. Whether the trustee is right or not, I shall not undertake to determine; that depends on facts which are contradicted, and principles of law applicable to them. The position taken by Dr. Buford’s counsel may be well founded, and I do not say that it is otherwise; it is not, however, entirely free from doubt — for if it were, I would not hesitate to enforce the rule against the sheriff, notwithstanding his return. An unquestioned right may as well be protected by rule, as by action*. The ground taken is, that the plaintiff’s execution should be presumed, and even regarded as paid, from the fact that the sheriff knew of it, and satisfied a junior lien from the sales of defendant’s property. This would be the case if the property was defendant’s at the time of sale, and was sold by the sheriff *in execution.*It may be, that the deed to J. T. Scott was fraudulent as to all the creditors of W. R. Scott, as well as to Chandler *&*Graham, whose junior execution has been satisfied.

The deed was voluntary, and may have been fraudu*157lent — but not necessarily so, from the fact of its being voluntary. That must depend on the circumstances and situation of the donor, at the time the deed was executed. The general presumption would be, that it was fraudulent as to all prior creditors. If it should turn out otherwise, upon a full investigation of the facts, it would shew that the motion was premature, and should not be granted — it not being right to make one person’s property pay another’s debts, because it was sold by the sheriff. The right of the trustee to direct the application of the funds in the sheriff’s hands, depends both on the fact of his being the *bona fide*owner of Rose and her children, and of his subjecting the property to sale at his own instance. If the affirmative be true, the sheriff might be regarded as the trustee’s agent to raise money for another’s benefit. Prudence, at least, requires that we should not deprive the parties of an opportunity of litigating their claims according to the common course of the law; or to have an issue made up to try the question involved in dispute. In this view of the subject, the Court think that the motion should be granted, and an issue is directed to be made up to try the question, whether the money in the hands of the sheriff should not be applied to the payment of the judgment of *Cooper vs. Scott.*In that issue, Dr. Buford is to be the actor, but must proceed in the name of G. W. Cooper, the plaintiff on the record, or in his own name, as assignee, if he be in fact the assignee of the judgment.

A. P. BUTLER.

We concur. J. S. Richardson, John B. O’Neall, Josiah J. Evans, D. L. Wardlaw.