Shaw v. Smith
| Decision Date | 31 March 1836 |
| Citation | 17 Tenn. 97 |
| Parties | SHAW v. SMITH. |
| Court | Tennessee Supreme Court |
The defendant in error, as sheriff of Lincoln county, had in his hands a fieri facias in favor of John F. Morgan, against James S. and W. Holman, which he levied on a negro woman and two children, as the property of William W. Holman. On the day appointed for the sale of the negroes, and before the sheriff proceeded to sell, one James G. Barksdale, who claimed them as his property, forbade the sale; but the sheriff proceeded to offer them to the bids of the company. Several persons bid for them, and, among the rest, the plaintiff in error, to whom, as the highest bidder, they were struck off for the sum of five hundred and twenty-one dollars. The negroes immediately descended from the block, where they had stood with the sheriff, who said to the plaintiff in error: “Here, Shaw, are your negroes; take them.” The negroes walked into the house of Holman, and Barksdale, the claimant, took and kept possession of them. This action is prosecuted by the sheriff to recover from Shaw the amount he bid for the negroes.
At the trial in the circuit court the defendant gave in evidence a bill of sale from Holman to Barksdale for the negroes, of a date anterior to the issuance of Morgan's execution, and proved by Barksdale that he had purchased the negroes and paid five hundred dollars for them. Evidence was also given that Morgan had indemnified the sheriff against any liability on account of the execution and sale of the negroes.
The court charged the jury “that so soon as the negroes were knocked off by the sheriff the property was changed if tendered or delivered by plaintiff to defendant, and that, if the negroes were in the power of the defendant with the consent of the sheriff, it was evidence of a delivery; that no bill of sale by the plaintiff was necessary to transfer the title to the defendant; and that the sale, as between the parties, was valid without a bill of sale; and that it was unnecessary for the plaintiff to accompany a delivery of the negroes with a tender of a bill of sale; that the law did not imply a warranty of title to these negroes, either by the sheriff or said Morgan.”
A verdict and judgment were rendered for the sheriff for the amount of the bid of the defendant, to reverse which this appeal is prosecuted.
F. B. Fogg, for plaintiff in error.
The act of 1825, ch. 40, sec. 2, provides that no officer shall be compelled to levy an execution on any property the title to which is disputed, and sell the same, unless the plaintiff will give bond and security to indemnify and save himself and such sheriff or officer. This act is an alteration of the common law. Where an indemnity is given, the plaintiff in the execution takes the place of the sheriff, and himself represents and guarantees that the property levied on is the property of the defendants in the execution. So far from the sheriff being liable to the plaintiff in the execution, the plaintiff is liable to the sheriff. Now, at common law, if the sheriff levied on property which was pointed out and represented to him by the creditor as his debtor's property, and sold the same and paid over the money to the creditor, if the value of the property was afterwards recovered of the sheriff, he could recover it back from the creditor upon the ground of his representation. Humphreys v. Pratt, 2 Dow. & Clark, 288. In all other cases the sheriff acted at his peril. But even in that case, in the sale of personal property, the law raises an implied promise, in a sheriff selling goods taken in execution, that he does not know that he is destitute of title to the goods. 5 Taunton, 657; Poto v. Blades, 1 Eng. Com. Law, 252.
In this case the court will perceive that on the 7th of June, 1834, Holman, the judgment debtor, previous to the recovery of any judgment against him, by bill of sale conveyed the negroes which were afterwards levied on to James G. Barksdale for five hundred dollars. This bill of sale was registered 14th of June, 1834, before any judgment was obtained. This sale is not in any way impeached for fraud against creditors or any other person. No actual delivery was made by the sheriff to defendant, and no bill of sale was made by the plaintiff to defendant. An officer who has taken goods upon an execution must sell them, not merely to the highest bidder, but, if the highest bidder is not able to pay, the sheriff may offer them to the next highest bidder; and, if the property be not paid for at the sale, the return should be that the goods were knocked down to A for so much, who did not pay the money--therefore the goods remain unsold. 2 Bacchus Sheriff, 450. It is the duty of the sheriff to sell property to the highest bidder who will pay the money, and he ought not to part with the property until the money is paid. If the highest bidder will...
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