State v. Pool

• Decision Date: 31 December 1844
• Citation: 27 N.C. 105,5 Ired. 105
• Court: North Carolina Supreme Court
• Parties: THE STATE, ON THE RELATION OF WILLIAM JORDAN et al v. JOSHUA A. POOL, et al.

5 Ired. 105

27 N.C. 105

THE STATE, ON THE RELATION OF WILLIAM JORDAN et al

v.JOSHUA A. POOL, et al.

Supreme Court of North Carolina.

December Term, 1844.

Where an equity of redemption is sold under an execution against the mortgagor, the purchaser is bound to pay the money secured by the mortgage in the same manner as the mortgagor was; and the surplus of the proceeds of such sale beyond the amount of the execution, belongs to the mortgagor, and those who represent him.

And where the sheriff himself, who sold such interest, was the mortgagee or trustee, his sureties on his official bond, are liable for such surplus.

A plaintiff cannot be non-suited after a judgment by default against one of the defendants.

A bond, given by a sheriff for the discharge of his official duties, though void, according to the previous decisions of this court, because those, who accepted it, had, at the time, no legal authority to do so, yet will become valid ab initio from a subsequent act of the Legislature, declaring that such bonds should be considered as having been legally delivered.

And this consequence will follow, although the act of Assembly (as our act of 1844) was passed, not only subsequently to the institution of the action, but also to the determination in the court below, and the appeal to this court.

The cases of Pool v. Glover, 2 Ired. 129. Camp v. Cox, 1 Dev. & Bat. 52. State v. Shirley, 1 Ired. 597; and State v. Wall, 2 Ired. 267, cited and approved.

Appeal from the Superior Court of Law of Pasquotank County, at the Fall Term, 1843, his Honor Judge NASH presiding.

This was an action of debt on the bond of the defendant Pool, as sheriff of Pasquotank county, and of the other defendants, as his sureties. The case appeared to be this:

In the year 1840, Joshua A. Pool was elected Sheriff of Pasquotank county for two years, and, at September Term of the County Court, he gave the usual bond for the performance of his duties. At September Term, 1841, he and the other defendants, as his sureties, entered into another bond, payable to the State, in the sum of 10,000 dollars, with a condition, after reciting his election by the qualified voters of the county for the term of two years, that, “if the said Pool, sheriff as aforesaid, shall well and truly execute, and due return make, of all process or precepts to him directed, and pay and satisfy all fees and sums of money, by him received by virtue of any process, to the proper person, to whom the same by the tenor therof ought to be paid, or to the proper person or persons to whom the same shall become due, and in all things well and truly and faithfully execute the said office of sheriff of Pasquotank, during his continuance therein, then this obligation to be void, otherwise to remain in full force and effect.”

At the time the bond was accepted by the court, there did not appear from the record that there were more than three justices of the peace in court, and that number was less than a majority.

An action of debt was brought on the foregoing bond by William Jordan and Louisa Jordan, as relators; and the breach alleged was, that Pool, the sheriff, refused to pay to the relators certain sums of money belonging to them, which he received under the following circumstances. On the 28th day of October, 1840, Josiah Jordan conveyed by deed of bargain and sale to the said Pool, a certain tract of land in fee, in trust to sell the same, and out of the proceeds of the sale, to pay certain debts in the deed mentioned, and in case the debts should be paid without selling the whole of the land, in trust to convey such part as should not be sold to the said Josiah Jordan or his heirs. Afterwards, a judgment was obtained against Josiah Jordan, for a debt not secured by his deed, and a fieri facias thereon was delivered to Pool, and he levied the same on the equity of redemption of Jordan, in the land so conveyed to him in trust; and then Jordan died, and before the return of the writ, Pool sold the equity of redemption under it for a sum, which paid the debt on the execution, and left a surplus of $1284 52; which sum, Pool sued for as sheriff, and recovered from the purchaser, and is that, for the non-payment of which this suit is brought by the relators, who are the heirs at law of Josiah Jordan. The pleas were, non est factum, conditions performed, by the sureties. Pool himself suffered judgment by default.

On the trial, the relators offered to prove, that a majority of the justices of the county were on the bench when the bond was accepted, but the court rejected the evidence.

For the defendants it was insisted, that there was not a proper acceptance of the bond, and therefore, that it was not in law the bond of the defendants.

It was further insisted for them, that the excess of money, received by the sheriff over and above the sum due on the execution, was received and held by him in his natural, and not in his official capacity, and was not in the condition of the bond; and that, as he was the trustee, he had a right to it as the legal owner.

It was agreed by the parties, that if the court should be of opinion, that the defendants would be liable to the plaintiffs upon the bond, if it had been properly accepted by a sufficient number of justices, then a judgment should be entered against one of the parties, who is named, for $428 17. But the court held that none of the defendants were liable, and non-suited the plaintiff, who appealed.

A. Moore for the plaintiff .

Kinney for the defendants .

RUFFIN, C. J.

Although arising, no doubt, merely from inadvertence, there is a manifest error, for which the judgment would, at all events, be reversed. The court non-suited the plaintiff after a judgment by default against one of the defendants; upon which the case was standing for an enquiry of damages from the alleged breaches. The relators had established a cause of action against that defendant, and could not be non-suited.

But we think there was also error on the merits. Even if the bond had been held to be valid, the court decided that the relators were not entitled to an action on it. We think they are entitled to the money, and could maintain an action for it on the sheriff's bond, if duly executed.

Such an interest, as remained in Josiah Jordan after his deed to Pool, was liable to execution, as an equity of redemption, under the act of 1812. Pool v. Glover, 2 Ired. 129. Now, the sale of an equity of redemption is in its nature a sale subject to the mortgage debt. It is the interest of the mortgagor in the land, over and above the mortgage debt, that is sold; and the estate of the mortgagee is not touched. Consequently the sum bid on any part of it does not belong to the mortgagee; but it is first to satisfy the execution, and, secondly, the surplus goes to the mortgagor, as the owner of the interest sold. Camp v. Cox, 1 Dev. and Bat. 52. If another person, instead of the sheriff, had been trustee or mortgagee, he could not, then, have demanded this surplus from Pool: so, neither can Pool, as trustee, retain it. This is the necessary result from the provision of the statute, that an equity of redemption, as such, may be sold on a legal execution, and from the adjudications that a conveyance in trust for sale to pay specified debts stands upon the same footing as a mortgage, properly speaking. Then, if Josiah Jordan had lived until the sale of the land, this money would have been his. If so, it follows, that it belongs to his heirs and that they may recover it by law. Therefore the court of law must recognize the interest therein of the mortgagor himself, as the owner, and, in like manner, recognize the rights of those who succeed in point of title to the mortgagor. This land decended to the relators, subject to the lien of the levy. It was to satisfy that debt, but the surplus belonged to the heirs. And as the surplus of land, if any had been unsold on the execution, after satisfying the mortgage debt, would have gone to the relators, by parity of reason the surplus of the money, arising from a sale in the heirs' time, goes to them also.

As we are not aware on what point his Honor's decision against the plaintiff was founded, it is our duty to consider each of them. Having held that the relators are entitled to this money, we are to consider, next, whether they can recover it in this form of proceeding and from these defendants: that is, supposing the bond to have been duly delivered. Upon this point also our opinion is with the relators. A purchaser must undoubtedly pay his whole bid to the sheriff, after getting enough to discharge the execution; must see that the purchaser satisfies the surplus to the owner of the property, before he can make a conveyance to the purchaser. Otherwise the defendant in the execution loses his property and is without any security for a part of the price. That the law never intends. Then, how does the sheriff receive this surplus? It is true, that he does not make that money by the direct mandate of the writ, nor is he bound by the tenor of the process to return the surplus into court with the writ. For the writ only commands him to make the sum recovered by the plaintiff and bring that into court. Yet as he is obliged by the law to receive the surplus, as a duty to the defendant, it is necessarily to be regarded as a duty of office, resulting from the prior duty, imposed by the writ, of making the sale. The money in the sheriff's hands, therefore, may not be deemed in custodia legis, so as not to be stopped by attachment or other means, which may prevent the sheriff from paying it into court with the writ, yet his only authority to receive it arises out of his office, and for all money received virtute officii, the sheriff's bond is a security, whether it belong to the plaintiff or defendant in the execution. We think this within the words of the bond in this case. It is money “received by virtue of process;” not payable,...