Martin v. Bufpalob

• Decision Date: 23 May 1901
• Citation: 38 S.E. 902,128 N.C. 305
• Court: North Carolina Supreme Court
• Parties: MARTIN et al. v. BUFPALOB et al.

38 S.E. 902

128 N.C. 305

MARTIN et al.

v.BUFPALOB et al.

Supreme Court of North Carolina.

May 23, 1901.

EXECUTIONS—INDEMNITY BONDS — LIABILITY OF SURETY—JOINT TRESPASSERS—RELEASE BY SHERIFF—VALIDITY—RES AD JUDICATA— ASSIGNMENT FOR CREDITORS—VALIDITY.

1. Sureties on an indemnity bond given to a sheriff to procure the service of an execution are co-trespassers in a wrongful levy by the sheriff, and may be sued in tort by the person injured.

2. A sheriff who receives an indemnity bond to procure the service of an execution cannot enter into a covenant with the surety, after a wrongful levy of the execution, which will release the surety from liability in tort to the person injured, since the surety is a joint trespasser.

3. A notice by a sheriff to a surety on an indemnity bond given to secure the service of an execution, that the former has been sued for a wrongful levy, is not required to be in writing and served by an officer, since it is not a judicial notice.

4. The fact that sureties on an indemnity bond given to a sheriff to procure the service of an execution received no notice of an action and judgment against the sheriff for a wrongful levy does not prevent a subsequent action against the surety by the person injured by the execution, since the sheriff and surety are joint trespassers, and a judgment against one does not bar an action against the other.

5. The affirmation before an improper officer of the schedule of preferred debts, on making an assignment for creditors before a justice of the peace, who is one of the assignees, renders the assignment void.

6. A judgment against a sheriff for the wrongful levy of an execution on property which has been assigned for the benefit of creditors, in which the assignment is held valid, is not res judicata in a subsequent action against the surety on an indemnity bond given to the sheriff, who was not a party to the action against the latter.

7. Code, § 1345, providing that a judgment against a principal on an official or judicial bond shall be presumptive evidence against the sureties, does not apply to an action against a surety on an indemnity bond given to a sheriff to secure the levy of an execution, since the action is in tort, and not on the bond.

Appeal from superior court, Northampton county; Hoke, Judge.

Action by B. D. Martin and others against W. H. Buffaloe and others for damages for the wrongful levy of an execution. From a judgment in favor of the plaintiffs, defendants appeal. Reversed.

R. B. Peebles, for appellants.

Day & Bell and Alexander Stronach, for appellees.

CLARK, J. The principle applying to actions against obligors upon indemnifying bonds is thus stated in Murfree, Sher. § 634: "The general rule is that, when a sheriff has committed a trespass in seizing property not subject to his process, the claimant may proceed against him and his sureties on his official bond, or against the obligors on his bond of indemnity, if he has taken one, the latter being regarded as a cumulative security, and the plaintiff (in the execution) and his sureties having rendered themselves liable as co-trespassers by its execution. * * * The claimant may, at his election, proceed against the sheriff and the sureties on his official bond, or bring suit against him and the obligors in his indemnity bond, who can properly be made defendants, because by the execution of the bond they ratify the acts of the sheriff, and become joint wrongdoers with the officer. It Is well settled that all persons who contribute to the commission of a trespass, or after the same has been committed for their benefit assent to it, are responsible as principals, and each liable to the extent of the injury. Hence the obligor in an indemnity bond may be held a co-trespasser with the officer who acted under it." The authorities cited in the notes thereto sustain the proposition that the liability of the signers of the indemnity bond to the sheriff is by virtue of the contract of indemnity, but their liability to him whose property is wrongfully sold is in tort, by reason of their being co-trespassers with the sheriff. Lesher v. Getman, 30 Minn., at page 328, 15 N. W. 309; Davis v. Newkirk, 5 Denio, 92; Herring v. Hoppock, 15 N. Y. 409; Knight v. Nelson, 117 Mass. 458; Screws v. Watson, 48 Ala. 628; Lewis v. Johns, 34 Cal. 629; Love-Joy v. Murray, 3 Wall. 1, 18 L. Ed. 120; Luebbering v. Oberkoetter, 1 Mo. App. 393; Allred v. Bray, 41 Mo. 487; and there are many others.

The sureties on the indemnity bond being liable as co-trespassers, the sheriff could not, by a covenant not to sue, exempt any one of them from...