M'Ghee v. Ellis and Browning
| Decision Date | 22 October 1823 |
| Parties | M'GHEE <I>v.</I> ELLIS AND BROWNING. |
| Court | Kentucky Court of Appeals |
Under an execution in favor of M'Ghee, (the plaintiff in error,) against Micajah Browning, the sheriff seized and sold a negro boy slave, as the property of Browning, and Ellis, the defendant in error, became the purchaser, at three months' credit, and executed his bond with security, to M'Ghee, for the price thereof, in the usual form. Shortly afterwards, James Brown, who claimed the slave as his, by title paramount to that of Browning, brought his action of detinue for the slave, against Ellis, and recovered. Ellis then exhibited this bill against both M'Ghee and Browning, with injunction against his bond for the purchase money, praying a perpetual injunction, which the court granted by a final decree; to reverse which, M'Ghee has prosecuted this writ of error.
There can be no doubt, from the testimony in the cause, that the slave was the property of Brown, and that he had sent the slave to attend his daughter, Mrs. Browning, home, when she was on a visit at his house, under a promise from her that he should be restored in two weeks, he, Brown, living in a distant county. While the slave was at Browning's, the sheriff seized and sold him, and M'Ghee, who had placed his execution in the hands of the officer, to pursue his legal remedy, gave no directions about the sale, and had no interference with it, and denies that he knew of the sale until after it was over.
The case thus stated presents the single question, whether a creditor or plaintiff in an execution is bound to refund to the purchaser the price of property sold under execution, when the title proves defective; or, in other words, is a creditor, who barely pursues his legal remedy, without controlling in any way the acts of the sheriff, bound by an implied warranty, to make good the title of goods or chattels sold under the execution?
It is somewhat singular, that sheriffs and sales under execution should exist in our codes of laws for so many centuries, and that wherever such sales exist, this question might, in the ordinary course of things, so frequently occur, and yet there should be so little said in the books on this subject; for, in the search made by this court, which is not very inconsiderable, we have not been able to find a single adjudicated case on the point. We have, therefore, been led to take it up measurably on principle, and examine and adjudicate as the reason of the case may guide us.
It would be hazarding too much, to say that all goods sold under execution passed without any warraniy of title, and that, in every instance, the purchaser runs the risk of title, and can have no redress for the loss of his money. On the contrary, we have no doubt that there is a responsibility somewhere, to which he may resort, in case his title proves defective. If such liability exists, it must either be against the creditor, (as the court below has decided in this case,) or against the debtor, whose debt is discharged by the sale, or against the sheriff, who seized and made the sale.
And first, what is the situation of the debtor? By his own act in creating the debt, and then refusing to discharge it, he is guilty of a wrong upon the creditor, which subjects him to legal process and the sentence of the constituted authorities of his country, that he shall pay the debt. The sheriff, with the judicial process in his hand, seeks his estate, and perhaps acting honestly and innocently, takes, by mistake, the estate of another, and exposes it to sale. By the act of sale and the return of the officer, his debt is discharged, his wrong against his creditor is purged, and the creditor is estopped by the return from again resorting to the judgment. To the judgment, and also the proceeding under the execution, both he and the creditor are parties, and while that remains in force, each is concluded by the return, as was decided by this court, in the case of Smith v. Hornback, Reed and others.* From this process and this mistaken act of the sheriff, the debtor receives a benefit direct; his debt is discharged, and the money of the purchaser is paid, laid out and expended for his benefit. It may, indeed, be said, that the proceedings against him are in invitum, and that, from that circumstance, his request that the money should be so laid out, cannot be presumed, and, therefore, that an action for money paid, laid out and expended, could not be sustained. To this it may be responded, that if the promise cannot be presumed, so that assumpsit may be maintained, he is under a strong moral claim, which may be enforced in equity.
When we examine the case of the sheriff, his attitude of responsibility is still more strong. He is bound to execute process of arrest on the body, at his peril. Hence it is said, that if he apprehends a wrong person, even though he is induced to do so by the deceit and falsehood of the person so apprehended, yet an action lies against him. In like manner he is bound to execute a fieri facias correctly, and at his peril must know that the property seized belongs to the debtor. If he takes that of a stranger, even though he is directed to do so, he is responsible to that stranger in an action of trespass, detinue or trover. He is the agent of the law, placed between debtor and creditor, undertaking to levy the creditor's execution on nothing but the estate of the debtor. The purchaser, then, has the right to presume that he has done his duty correctly, and to infer from the office, the execution and the sale, that he buys a good title, and if he does not, that the sheriff has so far violated his duty as to deceive him. The exhibition and sale of property by an individual, as his own is deemed sufficient in law to raise an implied warranty of title. Why, then, may not the acts of a sheriff, who vends property which he represents to the world he has correctly seized and sold, be deemed equally sufficient to raise an implied warranty of title?
If we examine the case of the creditor, he is more remote from liability, in reason, than either the debtor or sheriff. Compelled by the refusal of the debtor to do him justice, he barely resorts to the means of coercion which the law furnishes him. Embarrassed and imbecile would be the remedy, if he is construed to warrant all the estate of...
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