Robey v. State

• Decision Date: 22 November 1901
• Parties: ROBEY, Sheriff, et al., v. STATE, to Use of MALLERY et al.
• Court: Maryland Court of Appeals

50 A. 411

94 Md. 61

ROBEY, Sheriff, et al., v. STATE, to Use of MALLERY et al.

Court of Appeals of Maryland

November 22, 1901

Appeal from circuit court, Prince George county; Geo. C. Merrick Judge.

Action by the state, to the use of Allen W. Mallery, assignee of John B. Contee, and others, against Benjamin F. Robey sheriff, and another. From a judgment in favor of plaintiffs defendants appeal. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, and SCHMUCKER, JJ.

Charles H. Stanley and Jos. K. Roberts, for appellants.

John B Contee and Duckett & Dent, for appellees.

McSHERRY C.J.

This is a suit upon the official bond of a former sheriff of Prince George county. The facts upon which the questions presented by the record arise are as follows: On the 1st of May, 1899 a writ of fieri facias was issued out of this court and directed to the sheriff of Prince George county, commanding him that, of the goods and chattels, lands and tenements, of Jemima C. Quynn and others, he cause to be made the sum of $300.55, costs adjudged by this court to be recovered by Allen W. Mallery and others against the said Jemima C. Quynn and others in a cause then lately depending in this court. In execution of that writ the sheriff on May 16th and 17th levied upon what is stated in his return to have been Mrs. Quynn's estimated share or interest in certain tobacco crops then in five different barns which were in the possession of other persons, possibly tenants of Mrs. Quynn; and on June 17th he also levied on two horses, a carriage, and harness. When these levies were made the sheriff was notified by Mrs. Quynn that the property seized by him did not belong to her in her own right, but that she held it, as trustee under the will of her late husband, in trust for herself and her children. She warned the sheriff that if he removed or sold the property she would sue him and the surety on his bond. Thereupon the sheriff notified the counsel of Mallery of the claim and the threats of Mrs. Quynn, and, not desiring to incur the costs and expenses of a litigation, demanded from the counsel of Mallery a bond of indemnity to protect himself against loss in the event of his being sued for executing the writ. The counsel of Mallery refused to give a bond of indemnity, but assured the sheriff that the claim of Mrs. Quynn was unfounded. The sheriff then made return to the circuit court for Prince George county, to which court the writ of fieri facias was returnable, that he had levied as per schedule appended, but had "not sold, for want of indemnifying bond; said bond having been asked for of John B. Contee, attorney, and not given." Nothing further seems to have been done until October 26th, upon which day Mallery, by his counsel, filed a petition in the circuit court; and after setting forth a statement as to the issuance of the writ, the levy thereunder, and the demand of a bond of indemnity, he averred that the demand of the sheriff for a bond of indemnity was frivolous and without just reason, right, or cause; and he then took issue with the sheriff as to the latter's right to demand such indemnity under the facts and circumstances, and upon the grounds relied on by the sheriff. The petition concluded with a prayer that a copy of the petition might be served on the sheriff and Mrs. Quynn, and that an order might be passed setting "the matter" down for hearing on the _____ day of _____, 1899. Upon the petition an order was passed directing "that the matter herein involved, of the sheriff's right to demand of the plaintiffs an indemnity bond before selling the property returned levied upon by him in this cause, be set for hearing on the 31st of October, 1899," provided a copy of the petition and order were served upon the sheriff and the defendants three days prior to the above-named date. The sheriff admitted service of the order, but the order was not served upon Mrs. Quynn. On October 31st the sheriff answered the petition by filing a copy of the return he had previously made, and which has already been alluded to. Nothing further was done by either party, and the matter seems to have been dropped. The answer of the sheriff was not excepted to as insufficient, it was not traversed, and no evidence was adduced to show that the averments of the petition were well founded. On May 31, 1900, this suit was brought against the sheriff and the surety on his official bond. The breach of the condition of the bond assigned in the declaration is the neglect of the sheriff to sell the property levied on by him, and his neglect "to make return thereof to the court." To this declaration the defendants pleaded three pleas: The first was performance. The second was in confession and avoidance. It admitted the issuance of the writ, the levy thereunder, and the failure to sell, but set up the claim made by Mrs. Quynn that she did not own in her own right the property levied on, but held it in trust under the will of her late husband. The plea asserted the willingness of the sheriff to make the sale upon being indemnified and protected either by a bond of indemnity, or upon being satisfied by competent legal advice that he could lawfully seize upon, take, sell, or dispose of the property in satisfaction of the execution. The plea further stated that the sheriff had requested the plaintiff to protect and indemnify, and it averred that the plaintiff "failed and absolutely refused to indemnify, agree to protect, or satisfy" the sheriff in the performance of his duty, and asserted that the plaintiff insisted that the sheriff should, at the risk of himself and his surety, proceed to sell the property levied on, "but the said defendant Benjamin F. Robey, honestly believing that the said property was not the property of either of said defendants in the execution, did not sell the same, but, desiring to protect the plaintiffs, *** returned said execution, showing the levy or schedule of said property." The third plea presents precisely the same facts by way of equitable defense. Issue was joined on the first plea, and a replication was filed to the second and third pleas. It is quite difficult to determine precisely what this replication is. It begins by admitting, distinctly and in terms, the allegations of the pleas, and then proceeds to deny what has been admitted, instead of being confined to a traverse of the traversable allegations of the pleas. The replication admits that a bond of indemnity had been demanded and had not been furnished, but it denies that the plaintiff "did not give the said sheriff the other alternative of his demand, to wit, the advice of a competent attorney that he could take and sell said property so levied upon. On the contrary, the plaintiffs aver they informed the sheriff, what he well knew without the advice, by the said John B. Contee and Marion Duckett, Esqs., of this bar, that Mrs. Quynn's claim of title and threats of suit as above set out in defendant's pleas were predicted upon title in herself as trustee under the will of John Bowling, deceased, and that, however futile her claim of title as trustee for her children might be, the fact was and is that the property so levied upon and scheduled in said pleas was never covered by said will, was never the testator's property, but, on the contrary, was the sole and exclusive property of Jemima C. Quynn, which she acquired from her father in her own right and in fee simple, *** and that said property could have been and should have been seized and sold under said writ," and that the sheriff had no right to demand a bond of indemnity, "and a bond for seizure and sale of such property,--trust property,--which was demanded by the sheriff, in the language of the claim and threats of Mrs. Quynn, would have been nugatory and idle." This replication was demurred to. The demurrer was overruled, and then a rejoinder was filed, and issue was subsequently joined. The case was submitted to the court upon an agreed statement of facts, but not upon a case stated. A prayer was presented by the defendants asking the court to rule as law that the verdict should be for the defendants. This prayer was rejected, and an exception was taken. Judgment was entered in favor of the plaintiffs for the penalty of the bond, to be released on payment of...