State ex rel. Matney v. Spencer

• Decision Date: 31 October 1883
• Citation: 79 Mo. 314
• Parties: THE STATE ex rel. MATNEY et al., Appellants, v. SPENCER.
• Court: Missouri Supreme Court

79 Mo. 314

THE STATE ex rel. MATNEY et al., Appellants,

v.SPENCER.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Buchanan Circuit Court.

REVERSED.

Ramey & Brown for appellants.

Joseph P. Grubb and Spencer & Hall for respondents.

HENRY, J.

This action was commenced in Buchanan circuit court against Spencer and his co-defendants, sureties, on his official bond as sheriff of said county.

The petition, omitting formal parts, alleges: That said James L. Spencer has failed to pay said $50,000, the penalty mentioned in said bond, nor has he performed the conditions thereof, but so to do has failed in this: that whilst acting as sheriff as aforesaid, two executions were issued against relators from the circuit court of Buchanan county, and directed to said Spencer, sheriff as aforesaid, and were delivered to him, and that he levied the same upon a large quantity of real estate as the property of relators; that said real estate was by him duly advertised for sale, and sold on the 31st day of August, 1877; that the said real estate consisted of lots in the city of St. Joseph, (particularly describing them,) and a tract of land in Buchanan county; that the aggregate of the sale amounted to $5,013, which should have been applied on said execution, but that said sheriff failed to collet and so apply $1,459 of the amount, being the amount for which a portion of said real estate was sold to C. A. Mosman and Jno. C. Bender; that instead of applying said amount as a payment of said executions, said sheriff returned the executions unsatisfied, and afterward plaintiffs therein had other executions issued, directed and delivered to said sheriff, who levied them upon the property of relators, so sold as aforesaid, as well as all other property of relators, and under said executions said property was sold by the said sheriff, and was wholly sacrificed, bringing less than $10, and that in consequence of said sacrifice of said property it became necessary to sell, and said Spencer did sell, other property of relators at a loss to them of $2,500, and that by the failure of said Spencer to apply the said sum of $1,459, as a credit and payment of said first executions, they were compelled to pay interest on said judgment and had been otherwise damaged to the sum of $2,500.

To this petition defendants filed a general demurrer, on the ground that it did not state facts sufficient to constitute a cause of action against defendants. The court sustained the demurrer and rendered judgment for defendants, from which this appeal is prosecuted.

If an officer sell property on an execution and fail to apply the proceeds received to its payment, he and his sureties are liable to the plaintiff in the execution, which is, to the amount of the proceeds of the sale, satisfied, as between the plaintiff and the defendant in the execution. Gwynne on Sheriffs, 438, and cases cited. If property is sold by the officer under an execution, and the purchaser refuse to pay the amount bid for the property, “the officer making the sale may again, at the same term, re-sell such property to the highest bidder, or he may re-sell the property on a subsequent day as though no previous sale of the property had been had; and if any loss shall be occasioned thereby, the officer shall recover the amount of such loss with costs, by motion before any court or before any justice of the peace, if the same shall not exceed his jurisdiction.” 1 Wag. Stat., § 46, p. 610.

1. EXECUTION: liability of sheriff for failing to enforce bid.

The obvious meaning of the language of the petition is, not that the sheriff failed to apply money collected, but that he failed to collect the amount of $1,459, for which portions of the real estate were sold. It was the duty of the sheriff to sell and collect the amount bid for the property. A failure to do so was a neglect of duty, and if he had an excuse in law for not collecting the money for which he sold the property, it is for him to show it. If the sale was made to parties who refused or were unable to pay the amount bid by them for the property, we...