Heath v. Daggett

• Decision Date: 31 March 1855
• Court: Missouri Supreme Court
• Parties: HEATH, Plaintiff in Error, v. DAGGETT & OTHERS, Defendants in Error.

21 Mo. 69

HEATH, Plaintiff in Error,

v.DAGGETT & OTHERS, Defendants in Error.

Supreme Court of Missouri.

March Term, 1855.

1. The plaintiff in an execution under which property belonging to a party other than the defendant has been levied upon and sold by the United States marshal, cannot recover from the marshal or his securities the proceeds of the sale. Nor does it make any difference that the plaintiff executed a bond of indemnity to the marshal before selling, where the law does not make it imperative upon him to sell upon receiving the bond.

Error to St. Louis Circuit Court of Common Pleas.

This was an action brought in 1853 against the securities in the bond of John W. Twichell, as United States marshal for the district of Missouri, to recover money collected by him under an execution in favor of the plaintiff against Amos Sands. The facts were as follows:

The execution issued upon a judgment of the United States Circuit Court, rendered at the April term, 1850. Under it, the marshal levied upon certain goods as the property of Sands. After the levy, George Lansing claimed the goods, and the marshal summoned a jury to try the right of property, who found in favor of the claimant. The plaintiff thereupon executed to the marshal a bond, conditioned to “indemnify and save him harmless from all damages, costs, charges and expenses that he may sustain by reason of the levy, seizure and sale,” and the marshal proceeded and sold the property, notwithstanding the verdict of the jury, and realized upwards of $6000 from the sale, a portion of which was paid to the plaintiff. This suit was brought for the balance.

In July, 1850, Lansing brought suit against Twichell for damages sustained by reason of the sale, and in May, 1852, recovered judgment for $8437 50, which remains unsatisfied. The suit was defended by the securities in the bond of indemnity. It was admitted, for the purposes of the present suit, that the property sold belonged to Lansing.

At the April term, 1838, the United States Circuit Court, for the district of Missouri, adopted a rule that writs of execution and other final process upon judgments and decrees of that court, and the proceedings thereupon, should be the same as those of the state courts.

Upon the above facts, the Court of Common Pleas gave judgment for the defendants, and the plaintiff brings the case to this court by writ of error.

Todd, Krum & Harding, for plaintiff in error.

1. It was lawful and proper for the marshal to take the bond of indemnity, and proceed and sell the property for the use of the plaintiff in the execution, notwithstanding the verdict of the jury in favor of Lansing's claim. (Watson on sheriff, (5 Law Lib.) p. 196-7-8. Sewell on sheriff, (44 Law Lib.) p. 243. Bay ley v. Bates, 8 J. R. 185, 189. Vancleef v. Fleet, 15 J. R. 147-151. Curtis v. Patterson, 8 Mo. Rep. 65. 7 Barr, 541-2. Rowe v. Cockrill, 1 Bailey's Eq. Rep. (S. C.) 137. Fisher v. Gordon, 8 Mo. Rep. 391. R. C. 1845, tit. Executions, sec. 25.) 2. The marshal having taken the bond of indemnity and sold under its protection, the plaintiff became entitled to the proceeds of the sale. (1 Bailey's Eq. Rep. (S. C.) 137.) 3. The judgment in favor of Lansing against Twichell is no defence, because the latter could have no claim or cause of action against Heath, except by virtue of his bond of indemnity, and upon this, he could have no cause of action until he had suffered actual damage. It is not sufficient that he is liable for damages. (1 Saund. Rep. 117, in foot note. 1 Chipman's (Vt.) Rep. 164. 14 J. R. 177. 3 Cow. Rep. 313. 7 Wend. 499. 8 Wend. 452.)

C. D. Drake, for defendants in error.

1. The defendants were liable to Lansing, the admitted owner of the property, for the marshal's trespass in selling it for the debt of Sands. ( State v. Moore, 19 Mo. Rep. 369.) 2. The recovery by Lansing of a judgment against the marshal alone for that trespass, does not extinguish the liability of the defendants therefor. ( Carmack v. Commonwealth, 5 Binney, 184. 3. This case is analogous to that of an action against an officer for failing to have attached property forthcoming on execution. To such an action, it has uniformly been held to be a sufficient defence that the property attached was not the defendant's. ( Fuller v. Halden, 4 Mass. 498. Tyler v. Ullmer, 12 Mass. 163. Denny v. Willard, 11 Pick. 519. Canada v. Southwick, 16 Pick. 556. Dewey v. Field, 4 Metcalf, 381. Jordan v. Gallup, 16 Conn. 536. Cilley v. Jenness, 2 N. Hamp. 87. Sawyer v. Mason, 19 Maine, 49. French v. Stanley, 21 Maine, 512.) 4. It is right on principle, as it is sustained by authority, that when an officer makes money on execution by the sale of property which was not the defendant's, he shall not be required to pay it to the plaintiff. (2 Dana, 297. Harper, 275. 2 Harrison, 299. 14 Ala. 541.) 5. The fact that the plaintiff indemnified the marshal for selling, gives him no right to the proceeds of the sale, after it is ascertained that the property did not belong to the defendant. The bond was given, that the property might be treated as the defendant's until the right to it was determined by the judgment of a competent court. To allow the plaintiff to recover, after he admits that it did not belong to the defendant, and that he had caused the sheriff to commit a trespass in taking it, would be to allow him to take advantage of his own wrong. ( Newland v. Baker, 21 Wend. 264.)

LEONARD, Judge, delivered the opinion of the court.

The question in this record is, whether the marshal's securities can resist the payment of the money collected by him upon the plaintiff's execution, on the ground that the property sold did not belong to the execution defendant, but to one who afterwards sued the marshal and recovered a judgment against him which yet remains wholly unsatisfied.

The circumstances relied upon to establish the plaintiff's right are, that the sale was made under a bond of indemnity, given by the plaintiff after an inquest by a...