Ramsour v. Young, 26 N.C. 133, 4 Ired. 133 (1843)

Dec. 1843 · Supreme Court of North Carolina

26 N.C. 133, 4 Ired. 133

JACOB RAMSOUR vs. SARAH YOUNG & AL.

Where asheriff, having several writs of JL fa. xaiXvend. ex. against a person at the instance of different creditors, takes an indemnifying .bond from of the creditors, and sells in consequence of that indemnity, he has no right afterwards to apply to the court for its advice as to the distribution or pay. ment of the money raised by the sale, especially when he has not paid the money into court.

Advice, given by the court on such an ex parte application, would not bind any of the creditors, who might still pursue their remedy against the sheriff, if they thought themselves aggrieved by his refusal to pay them.

Vi hen the court, however, proceeds,- on such an application, to give its advice, the proceeding being ex parte, none of the creditors have a right to appeal.

Appeal from the Superior Court of Law of Lincoln connty at Spring Term, 1843, his Honor Judge Dick presiding.

At March Term, 1843, of Lincoln County Court, the Sheriff returned into court a number-of writs of venditioni ex-ponas and Ji.fa. issued from that court against one William Fullenwider, at the instance of different creditors, among whom was the present plaintiff, Jacob Ramsour, and the present defendants. The following return was made by the Sheriff on one of the executions, No. 69, in favor of Jacob Ramsour:

■'“The following executions, to wit, Nos. 71, 72, 73, 74, 75, 87 and 93 against the property of one William Fullenwider, issuing from June Term, 1842, of this Court, came into my, the high sheriff’s, hands. And also two other executions, bearing the same teste, in favor of Jacob Ram-sour against the' property of the said Fullenwider for the sum of $1131 61 were placed in the hands of one of the deputies (Isaac Lowe) of the said high sheriff. On the 3d day of December, 1842, the said Isaac Lowe, deputy as aforesaid, by viitue of the said two executions in favor of the said Ramsour and at his special request, levied on and took into his possession the following negroes, to wit, Rosetta, Bob and Isaac, said negroes then being in the possession of aní^ cla™ed by one John Hayes as his property. The said Ramsour, before the making of the said levy, gave to the sa¡(j ¿¡epoty a Pond to indemnify him against the claim of the said Hayes, and without which bond said deputy would not ’have made said Levy. On the following Thurday (it being the Court week to which all of the above executions were returnable) as soon as I, the said sheriff, became aware of .the said levy, I directed the said Lowe to indorse the like levy on the said executions, to wit, Nos. 71, 72, 73, 74, 75, 87 and 93, and to date said levy as of December 3d, 1842, which was done. The said negroes were sold after due advertisement on the 7th of March, 1843, and Jacob'Ramsour became the purchaser. No bond of indemnity was given or tendered by any of the execution creditors, except the one given by the said Ram-sour.

Amount of money made by said sale, $549

Retained for fees, commissions and charges, 47 45

Balance remaining in my hands, $501 55

I have made no appropriation of this sum, and I am ignorant how I should appropriate the same and I therefore pray the Court to direct how the same shall bo appropriated.

(Signed) J. R. Stainey, Shff.

J. Lowe, D. Shff.

The other writs of venditioni and fieri facias, viz. nos. 70, 71,72, 73, 74, 75, 87 and 93 were endorsed “The same return made on this as on No. 69, See 69.

J. R. Stainey, Shff. J. Lowe, D. Shff.”

On these returns being made, the counsel of Jacob Ram-sour moved that the proceeds of the sale of the negroes, set fort in the return of the Sheriff, be applied to the two writs of •venditioni exponas issued at the instance of Jacob Ramsour, viz. Nos. 69 and 70. This motion was sustained by the Court and the money directed to be applied accordingly. With this decision Sarah Young and other execution creditors being dissatisfied prayed an appeal to the Superior Court, which, was granted.

In the Superior Court it was adjudged that the money be appropriated to the executions in favor of Jacob Ramsour. ti i From this decision the present defendants prayed for and obtained an appeal to the Supreme Court.

Alexander and L. F. Thompson for the plaintiff.

D. F. Üaldwell and Hoke for the defendants.

DA.NII2I., J.

This case is, in substance, an application to the Court by the sheriff, for information, how he ought to make his returns, upon the several executions which are in his hands. It is not like the case of Yarborough v State Bank, (2 Dev. 23,) where the money was paid into Court. The sales amounted only to $>501 55. Ramsour, one of the execution creditors to the amount of $1131 61, gave the sheriff a bond of indemnity to levy at his instance on the slaves, as ffm. Fullenwider’s property. The sheriff says, that, as the said slaves were then in possession of one Hays; under a claim of title, .he should not have made the levy without the said indemnity. He has not abandoned his indemnity, And as he has hitherto gone on, and made his levy and sales, clinging to his indemnity, we think that he has no right, in this stage of the proceedings, to ask the Court, how he ought to make his returns, so as to secure himself from any liability to the dissatisfied creditors-. As he is acting under a bond of indemnity, the Court cannot interpose by rules on the parties, but he nnist make his returns on the executions upon his own judgment and at his peril. Upon such an ex parte application by the sheriff, the creditors would not be concluded, and if the officer chose to abide by an opinion given to him by the court, one of the creditors could not appeal therefrom. Whether, therefore, the Court was right or not in thinking that the indemnifying creditor had a right to the money raised by the sheriff, the other creditors could not try the question in this form — the sheriff still holding the money in his own hands. As between the sheriff and Ramsour, the former might have been bound to pay the money to the latter by what had taken place between them, while the sheriff might also be liable in law to pay a share thereof to the other creditors, if in truth the negroes were Tullenwider’s and not Hays’. But that question must be tried in the proper manner. This is not the proper mode pp doiug so. because, when a sheriff acts under an indemnity, he does so at the risk of the indemnifying creditors, whose interests the sheriff thereby undertakes to subserve. He does not stand before the Court in such a case, merely as an officer: and therefore the Court is not bound to advise hitn. But if the Court should advise him to conform to the obligations arising out of the indemnity, it leaves the other creditors unaffected by that advice, and they cannot appeal.. — . While, therefore, we think that' the Court ought not to have made the order on the sheriff to return the money as Ram-sour’s, we likewise think that the appeal ought not to have been granted to Young and others, and that it should have been dismissed and with costs in the Superior Court: and this will be certified to the Superior Court.

Per Curiam, Ordered accordingly.