64 Neb. 561 | Neb. | 1902
This was an action upon a sheriff’s bond. The court sustained a general demurrer to the petition and gave judgment on the merits in favor of the defendants. The facts pleaded, and which were held insufficient to constitute a cause of .action are, in substance, these: Timblain gave two mortgages upon real estate in Cuming county, the first being to Dufrene and the second to Gibson. Gibson sold his mortgage, but the purchaser did not record the assignment. Under a decree of foreclosure rendered in an action upon the first mortgage, James P. Milligan, the plaintiff herein, bought a small tract of the mortgaged land, and paid the sheriff therefor the sum of $400. This sale was confirmed by the court and a deed made pursuant to the order of confirmation. Gibson, being the apparent owner of the second mortgage, was made a party defendant in the foreclosure suit, but his assignee,' the real owner of the mortgage, having fathed to record his assignment, or otherwise disclose his interest in the property, was not brought in. Of the amount paid by plaintiff as the purchase price of the tract struck off to him. $16.88, that being sufficient to satisfy the decree, was turned over to Dufrene. The remainder was retained by the sheriff and has since been applied by him to his personal use. Afterwards the OAvner of the Gibson mortgage brought an action in-the federal circuit court and there obtained a decree permitting him to redeem the land. Having been deprived of his property under this decree, the plaintiff contends that he is entitled to a judgment against the sheriff and his sureties for the money converted by the sheriff to his oavu use. It seems to us that he -is clearly entitled to this relief. It was the duty of the sheriff to pay over to the person or officer entitled thereto all moneys which came into his hands by virtue of his office. The bond in suit was given to secure the performance of that duty. The money paid by plaintiff came into, the sheriff’s hands by virtue of his office. He
The judgment of the district court is reversed, and the cause remanded for further proceedings.
Reversed and remanded.