State ex rel. Graves v. Read, 28 N.C. 80, 6 Ired. 80 (1845)

Dec. 1845 · Supreme Court of North Carolina

28 N.C. 80, 6 Ired. 80

THE STATE ON THE RELATION OF J. S. GRAVES vs. NALEY READ & AL.

A purchaser at a Constable’s, as well as at a Sheriff’s sale, is bound to pay the whole amount of his bid to the officer ti' ling, and the latter, and his sureties in his official bond, are liable to the person whose property is sold, for the excess beyond the amount required to satisfy the execution in the officer’s hands.

The case of the State v. Pool, 5 Ired. 309, 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 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.

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 were not, therefore, liable ; and directed the verdict to be set aside and a non-suit entered. From this judgment, the plaintiff appealed.

Badger, for the plaintiff.

Kerr and Morehead, for the defendants.

Daniel, J.

In the case of the Stale v. Pool, 5 Iredell,

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 hands for collection, and faithfully pay over all sums, thereon received, unto the persons to whom the same is due. On the bond, the Act of Assembly (Rev. Stat. 115, s. 7,) declares, that suits may be brought and remedy may be had, in the same maimer 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.

Pee Cueiam. Judgment accordingly.