State ex rel. Graves v. Reed, 27 N.C. 357, 5 Ired. 357 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 357, 5 Ired. 357

THE STATE, ON THE RELATION OF J. L. GRAVES, ADM’R. vs. NOEL REED & AL.

Where a sale of property under execution is made by a sheriff or constable, and the property brings more than the amount of the execution, it is the duty of such sheriff or constable to see that the excess is paid to the owner of the property. If he fail to do so, he is liable on his official bond.

The case of The State v. Pool, 5 Ired. 109, cited and approved.

Appeal from the Superior Court of Law of Caswell county, at the Spring Term, 1845, his Honor Judge Caldwell presiding.

This was an action of debt upon a constable’s bond, executed by one Hooper in the year 1837, with the defendants as his sureties. It appeared in evidence that, during that year, the constable levied an execution in favor of one Gunn, amounting to about thirty dollars, on a slave, the property of Anderson, the relator’s intestate, and sold the same for about five hundred and eighty-four dollars. The constable paid Gunn’s debt, and also another execution, levied subsequently to Gunn’s, amounting to about three hundred and five dollars. And this suit was for the excess in his, the constable’s hands, after paying those two claims. A judgment was taken for the plaintiff for the amount of the excess, subject to the opinion of the court as to the liability of the sureties.

On consideration the court was of opinion, that such excess in the hands of the constable was not held by virtue of his office, and that the defendants therefore were not liable, and directed the verdict to be set aside and a non-suit entered.The relator appealed to the Supreme Court.

No counsel for the plaintiff in this court.

Kerr and Morehead for the defendants.

Daniel, J.

In the case of The State v. Pool, 5 Ired. 109, this court said, that a purchaser at a sheriff’s sale must undoubtedly pay his whole bid to the sheriff, and, after getting enough to discharge the execution, the sheriff must see that the purchaser satisfies the surplus to the owner of the property, before he can make a conveyance to the purchaser. He (the sheriff) receives the surplus money by virtue of his office; and for all money received by virtue of his office, his bond is a security, whether it belong to the plaintiff or the defendant in the execution. The bond of a constable stipulates, that he should diligently endeavor to collect all claims put in his hand for collection, and faithfully pay over all sums, thereon received, unto the persons to whom the same is due. On this bond, the act of assembly (Rev. Stat. ch. 24, sec. 7) declares, that suits may be brought and remedy may be had, in the same manner as suits may be brought and remedies had upon the official bonds of sheriffs and other officers. .

The above decision was made by this court at the last term, and it is probable was unknown to his Honor, when he gave judgment in this case. The judgment of non-suit must be reversed, and a judgment rendered on the verdict for the plaintiff.

Per Curiam, Judgment accordingly.