Holley v. Wallace , 10 Ga. 158 ( 1851 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] As Wallace was a paity to the rule against Holley, in which the latter was made chargeable with the debt of Dowdell & Wells, on account of the default of his deputy, Wallace, in not levying their mortgage ft. fa. it is clear that he is concluded by the judgment against his principal. It is, in fact, though not in form, a judgment against Wallace himself. How far David Elliott, one of the securities of Wallace, and a party to the present suit, and who had no judicial notice of the proceeding, may be bound by it, is another question.

' C^.] There is respectable authority to the effect, that in an action against the Sheriff for not levying upon property as belonging to the debtor, he may prove a paramount title in another. Fuller vs. Holden, (4 Mass. R. 498.) Denny vs. Willard (11 Pick. Rep. 519.)

But when such defence has been admitted, the directions to the officer in the writ were general; whereas, by the mortgage execution, he is commanded to sell" the particular property therein described. And this authority, we apprehend, would be sufficient to secure him from an action at the instance of the owner. At Common Law, where indemnity was tendered, the officer was bo'und to levy.

While I would stretch the powers of the Courts to the utmost, to shield vigilant officers, I am unwilling, for myself, to relax these salutary rules, founded in wisdom and vindicated by experience, which have been established for the protection of the community against agents who are artfully delinquent.

What are the facts here ? Mr. Wallace admitted that he neglected to levy the mortgage execution in time to make the money, in consequence of having mislaid it. For this breach of duty on his part, he stands by and sees his principal, Mr. Holley, made responsible for the debt. And now, when he is sued for reimbursement, he seeks to defend himself, upon the ground that the title to the land was not in Collins, the mortgagor, and that if it was, that the mortgagees had lost their lien by failing to have it recorded within time.

K this showing- was available, why was it not made in time to save his principal harmless ?

It is against both principle and policy, in my humble judgment, to allow an officer to take the law into his own hands, by peremptorily refusing, or, what is the same, wholly neglecting to execute the precepts of the Court to which he is bound, and which the creditor has a perfect right to insist upon. To suffer an officer to excuse himself, or even alleviate the damages consequent upon a wilful neglect of duty, by showing that property which he is specifically commanded to sell, is not subject to tfie debt, would be opening a wide door to collusive practices between officers and debtors, and their friends; and an execution instead ofbeingyÍKK et frudus legis, would be but a troublesome and expensive formality.

With these general views, the judgment below must be set aside, and a new trial awarded, without intending to define the exact status of the security, who is sued in this action. To do this, wrould be. to anticipate the decision of the Superior Court upon the point, should it ever arise; and this Court has not original jurisdiction.