| Mo. | Mar 15, 1855
delivered the opinion of the court.
The question in this record is, whether the marshal’s securities can resist the payment of the money collected by him upon the plaintiff’s execution, on the ground that the property sold did not belong to the execution defendant, but to one who af-terwards sued the marshal and recovered a judgment against him which yet remains wholly unsatisfied.
The circumstances relied upon to establish the plaintiff’s right are, that the sale was made under a bond of indemnity, given by the plaintiff after an inquest by a jury, taken pursuant to our execution act of 1835, in which the property was found to belong to the claimant.
We are of opinion that the marshal could resist the payment on the ground suggested, and that his official securities may also insist upon the same defence. It is well settled, as a general principle, that an officer is not bound to go on with an execution against property, after ascertaining that it belongs to another, and he may, of course, resist the plaintiff’s demand for the proceeds on the same ground.
This seemed to be conceded in argument as the general rule, and the point made for the plaintiff was, that, as the officer sold under a bond of indemnity, he was bound to complete the transaction, by paying over to the plaintiff the proceeds of the sale, and to rely for.indemnity upon the bond he had taken;
The execution act of 1845 makes it imperative upon the officer to sell when a sufficient bond of indemnity is tendered to him, and expressly provides that the bond taken shall protect him from all liability to the claimant, substituting for the claimant’s protection this bond, in lieu of the personal liability of the officer. (R. C. 1845, p. 480, 481, secs. 25, 26 and 27.)
Of course, when a bond of indemnity is given under this act, the officer must sell and pay over the proceeds to the plaintiff, and he cannot refuse to act on the old ground, that the property belongs to a stranger, and not to the execution defendant.
The execution act of 1835, however, falls far short of this, and that is the act embraced in the rule adopted by the United States Circuit Court for this district, and, pursuant to which, it is admitted the present sale was made. That act does not make it the duty of the officer to sell upon the tender of sufficient indemnity, but, leaving that wholly to his own discretion, merely provided that the finding of the jury should protect him against both parties, claimant and execution creditor; and it has never been holden in this state, it is believed, that a sheriff was bound at common law to levy and sell when tendered a sufficient indemnity.
In all this matter, the sheriff was required to act upon his own responsibility. If he sold the property of a third person, he was responsible to such person for the trespass ; if he refused to sell when he ought to have sold, he was liable to the plaintiff in the execution. The law required him to act, and held him responsible for his conduct to the party injured, leaving it to his own judgment to determine whether he would execute the writ, or return it “ nulla bona.” If he saw fit, however, to take a bond of indemnity and sell, the bond was valid
Now, what obligations did the taking of this bond impose upon the officer under the act of 1835 ? That is the question to be settled, and we are asked to say that it estopped him from showing property in a stranger by means of a judgment subsequently recovered against him in a solemn judicial proceeding, of which the execution plaintiffs had notice, and the de-fence of which they took upon themselves as the real parties in interest. We cannot, we think, imply from the act of accepting the bond, an undertaking on the part of the officer to abstain from such a defence, nor can we discover any ground of natural equity, or principle of public policy, that will authorize us to create such an estoppel. These plaintiffs have now no right in morals to the proceeds of this property. It has been judicially ascertained, as against themselves, that it did not belong to their debtor, and ought not to have been sold ; and tho officer is now liable to tho owner for the value yet in his hands. The principle object of the bond of indemnity was to avoid a sheriff’s inquest as to the right of property, and to transfer the settlement of that question to a competent tribunal, where the rights of all parties might, be fairly ascertained. This being done, and an unsatisfied judgment standing against the officer for the property, upon what ground can we raise an estoppel, in order to put the proceeds of the sale into hands that have have no right to them, and that were, indeed, mainly instrumental in the wrong perpetrated by the levy and sale ?
It is argued, however, that the officer may never be required to refund the money, while tho plaintiff, being equally liable as co-trespasser, may yet be sued and compelled to pay the owner the value of the property sold. The answer to all this is, that, when it occurs, the plaintiff will furnish a new ground of recovery against the officer and his securities.
The judgment must be affirmed, and the other judges concurring, it is affirmed accordingly.