Patterson v. Powell , 15 Ala. 205 ( 1849 )

DARGAN, J.

It is the duty of a sheriff, in good faith to execute all process that comes to his hands, and in the exercise of the powers conferred on him for this purpose, he should observe a due regard to the interest of both plaintiff and defendant. If he make an insufficient levy, when the defendant had property sufficient to pay the debt, and thereby fails to make the money according to the mandate of the writ, he is responsible to the plaintiff. If he make an excessive levy, to the injury of the defendant, he is responsible to him. In determining, therefore, whether the levy is sufficient, or not, he must exercise a sound, and prudent discretion, and the estimated cash value of the property, in the neighborhood where it is situated, and where it is to be sold, is necessarily a circumstance, which he must consider, in determining whether the levy is sufficient or not.

If it so turn out, that the property, although of sufficient value to pay the debt, remains in his' hands unsold for the want of buyers, and if by his return he shows these facts, if he has honestly endeavored to sell it, he cannot be made responsible because no one will buy. If the property is fairly sold, and brings much less than a man of prudent judgment would have supposed to be its cash value, and what it should have brought at cash sale, the sheriff is not responsible, if he has exercised honesty, and good faith in the transaction. We all know that property at sheriff sale sometimes brings its full value — sometimes, it is sold at a great sacrifice; whether it will bring its value, or near it, or whether it will be sold for less than one half its value, it is impossible for the sheriff always to foresee; consequently, it would be unjust, and unreasonable, when he is sought to be charged for an insufficient levy, to confine the evidence of the value of the property, to the amount produced at the sale. This view we think is sustained by the case of Powell v. The Governor, use, &c. 9 Ala. 36, and shows that the court did not err, in admitting the evidence objected to, and which tended to show the value of the land in cash.

2. The evidence showed, that the land was mortgaged for about eight or nine hundred dollars. The executions levied on it, amounted to twelve or thirteen hundred. The land was sold incumbered with the mortgage, for $303. The testimony, apart from the sale, showed the cash value to be about $4,000; the sale took place, the first Monday in March. The term to which the . execution was returnable, commenced the last Monday; consequently, the sheriff could not levy on and sell slaves after the sale of the land, before the return day of the writ. But immediately after the sale, slaves were levied on, and a forthcoming bond taken for their delivery, on the first Monday in April. The instructions given by the court to the jury on this evidence is, that if the jury believed from the whole evidence, that the delay in selling the land, until it was too late to levy on and sell slaves, before the return of the execution, resulted from a belief, that the land was of value sufficient to pay all the liens on it, and satisfy all the executions, and would bring at sheriff’s sale an amount sufficient for that purpose, and if they further believed, the land to be of sufficient value to authorize a man of ordinary prudence to come to that conclusion, then they should find for the defendants. -We think these instructions are fully justified, by the cases of The Governor, &c. v. Powell, which grew out of the levy and sale of the same lands, and also by the case of Powell v. The Governor, &c., both of which are reported in 9 Ala. 36, 83. Both those decisions hold, that the sheriff was not responsible for postponing the sale of the land, until the last sale day. It was done under a well founded belief, that the land would sell for enough to satisfy all liens upon it, notwithstanding the incumbrance on it, by way of mortgage. They likewise hold, that the sheriff was not responsible for not making an additional levy, previous to the sale of the land, if he declined to do so under the same -belief.

These decisions are decisive to show, that there was no error in this charge. It may be proper however, to add, that we are not inclined to go further, than the decisions referred to require. A sheriff levying on land, incumbered with a mortgage, instead of unincumbered property, if it do not sell for enough to satisfy the debt, must show, that men of good judgment'estimated the value of the land for cash, at a sum sufficient to pay the execution, notwithstanding the mortgage, or incumbrance, and that he acted under the impression, that the land at sheriff sale, would bring enough for this purpose. If the evidence does not acquit him of negligence, and also show that he acted in good faith, under the impression that the land, notwithstanding the incumbrance, would bring enough to satisfy the plaintiff’s demand, he would be liable.

It is supposed that the case of Hallet v. Lee, 3 Ala. 28, is opposed to the cases referred to in 9 Ala. But they are distinguishable. The levy in that case was oh slaves; a forthcoming bond was given, and the sale postponed, until the last sale day, before the return day of the writ. As the defendant had given a forthcoming bond, whether the sale would take place or not, depended on his will. If he saw proper to deliver the property on the day of sale, the sheriff could sell; but it was at the option of the defendant in execution, whether a sale took place or not. This was negligence, as the sheriff could have appointed an earlier day for the sale, and if the property had not been delivered, the bond could have been returned forfeited, an execution issued on the bond, and a sale had, before the term of the court to which the writ was returnable. But in the case at bar, as well as in the cases referred to in 9 Ala., the levy was on land, and the sheriff had the right to sell, and did sell, on the day appointed, and no act of the defendant could have prevented the sale, unless he had paid the money.

There is no error in the ruling of the court, and the judgment is affirmed.