Harrison v. Shanks

• Court: Kentucky Court of Appeals
• Writing for the Court: PRYOR, JUDGE:
• Citation: Harrison v. Shanks, 76 Ky. 620 (Ky. Ct. App. 1878)
• Decision Date: 08 March 1878
• Parties: Harrison v. Shanks.

76 Ky. 620

Harrison v. Shanks.

Court of Appeals of Kentucky.

March 8, 1878

APPEAL FROM JEFFERSON COMMON PLEAS COURT.

LANE &amp HARRISON FOR APPELLANT.

When a sheriff seizes upon the property of a stranger, and sells it as the property of a defendant in execution, and the same is subsequently taken from the purchaser by its rightful owner then the purchaser may recover from the sheriff his purchase-money with interest; and--

The sheriff is bound to know, at his peril, the title of the property which he sells as a ministerial officer; and if it proves otherwise than as represented by him, then he is responsible on his official bond to the injured party. (Civil Code, secs. 641, 642, 643; McGhee v. Ellis, 4 Litt. 246; Commonwealth for Davy v. Stockton, & c., 5 Mon. 192; Pepper v. Commonwealth, 6 Mon. 27; Head's reps. v. McDonald, 7 Mon. 206; Wolford v. Phelps, 2 J. J Mar. 34; Forsythe, & c. v. Ellis, 4 J. J. Mar. 298; Poole v. Adkinson, 1 Dana, 110; Commonwealth for & c. v. Dickinson, & c., 5 B. Mon. 506; Board v. Helm, 2 Met. 500; Green v Hackley, 3 Met. 386; Carrington v. Herrin, 4 Bush, 624; 1 Chitty's Blackstone, 432, note 23.)

J. G. WILSON FOR APPELLEE.

A sheriff does not warrant the title to property levied upon and sold by him to satisfy an execution.

The sale of the tobacco was not a breach of the sheriff's bond well and truly to execute the duties of his office. ( Forsythe v. Ellis, 4 J. J. Mar. 301; Board v. Helm, 2 Met. 501.)

OPINION

PRYOR JUDGE:

There is no implied warranty of title by the sheriff on a sale of property by him under execution, and the authorities relied on by counsel must be regarded as mere dicta. In the case McGhee v. Ellis & Browning (4 Litt. 244) Ellis, who had purchased the slave at a sale made by the sheriff, had to surrender the property to Brown, who was the real owner and not the defendant in the execution. Ellis then instituted his action against McGhee, the execution creditor, and Micajah Browning, the execution debtor, to recover back the purchase-money. The plaintiff in the execution was held not to be liable, for the reason that he only pursued the legal remedy for the collection of the debt, and was in no manner instrumental in requiring the sheriff to make the levy. The defendant in the execution, however, was adjudged to be liable, for the reason that the purchaser under the execution had paid his debt. In discussing the questions involved in that case, and the necessity for affording the purchaser who had lost the property some remedy in order to recover back his purchase-money, this court, although the sheriff was not a party to the action, proceeded to determine that the mere acts of the sheriff in seizing on and selling the property were sufficient to raise an implied warranty of title, and to make the sheriff liable, as well as the defendant in the execution whose debt has been satisfied by the purchaser.

Other cases may be found in which the same doctrine is, in effect, announced by this court, but in no case was the proceeding by the purchaser, who had lost the property by a paramount title, against the sheriff on an implied warranty.

Where the sheriff acts in good faith, or when he levies on and sells property under execution as the property of the debtor having no sufficient reason to doubt the title, he can not be held responsible, and the doctrine of caveat emptor applies; but when informed as to the existence of an adverse claim, or being in the possession of facts which should place one of ordinary prudence on inquiry in regard to the title, it is his duty to take a bond of indemnity to protect the purchaser as well as the claimant from any defect in the title; or, as to the purchaser, he should at least make known the defects, or the existence of the adverse claim, if any existed, when he offers it for sale. As to the real owner, the sheriff is liable...