| Mo. | Apr 15, 1890
This is a suit upon the official bond of defendant Finn as sheriff of the city of St. Louis.
There are two counts in the petition, each relating to different property and to different executions. The pleadings, proofs and rulings of the court are substantially the same on both counts, so that it will only be necessary to consider the first.
An execution was issued out of th‘e circuit court upon a judgment recovered by the collector for back taxes due upon property designated as lots 1, 2 and 3r The execution was special and directed the sheriff to sell each lot for the payment of the amount of taxes adjudged to be due thereon with interest and costs. A large number of persons are named as defendants in the execution. The sheriff sold lot 1 for three thousand
The petition states that Lee paid the purchase price of the three lots, namely, thirty-one hundred and twenty-five dollars, to the sheriff, and received a deed to the property, but that the sheriff failed and neglected to have the said sum or the surplus or any part thereof before the court, and that he failed and refused to pay to them their share of such surplus.
Plaintiffs put in evidence the execution and the sheriff ’s return thereon. The return shows that the three lots were sold to Mr. Lee at the prices before stated, and then goes on to say “ making an aggregate of thirty-one hundred and twenty-five dollars, of which sum $1,796.66 was to me paid and by me applied to the debt, interest and costs in this writ, the balance of said purchase money not paid.” No statement is made in the return as to the disposition of the balance or why it was not paid. The plaintiffs then called Mr. Lee, who testified that, as agent for the plaintiffs in this suit, and the other owners mentioned in the execution, he became the purchaser of the three lots at the prices before named, aggregating thirty-one hundred and twenty-five dollars; that he only paid the sheriff $1,795.66, being the amount of the debt, interest and costs due upon the execution; and that for the owners of the property he receipted to the sheriff for the balance of the purchase price and received a deed to the property.
1. The first question is, whether the court erred in excluding the proposed evidence. As between the parties to a suit and their privies, the general rule is that the return of the sheriff to mesne or final process is conclusive. But the rule has no application in a suit against the sheriff for neglect of official duty. In such a suit the return is at most only prima facie evidence in the sheriff’s favor. Freeman on Ex. [2 Ed.] sec. 366. The evidence offered by the plaintiffs could not, therefore, be properly excluded for the reason assigned in the objection made to it by defendants. Nor was it necessary for the plaintiffs to sue the sheriff for a false return. An action on the case does i not lie for not having money levied on fieri facias in the court where the sheriff has not been ruled, the proper remedy in such case being asstompsit, or debt for money had and received. 1 Chitty on Pleadings [16 Am. Ed.] p. 156. n. g. Here, the plaintiffs allege, the defendants admit, and the return .shows the prices at which each lot was sold and the aggregate of the sales. The sheriff was bound to account for this aggregate amount and that, too, whether he received any part or portion of it. That he only received a part is wholly immaterial, so far as this suit is concerned.
But if the evidence was properly excluded, the judgment should not be reversed because it was excluded for a wrong reason. As we have seen, the amount of the sales, agreed to on all hands, fixed the amount for which the sheriff was bound to account, and that, too, whether he received the money or not. Evidence aside from the return was unnecessary on that point. The execution, which was in evidence, showed conclusively the amounts to be applied thereon.' The whole of the proposed evidence was, therefore, unnecessary and added nothing to the plaintiffs’ case. The facts had been proved by primary and better evidence, and there was no error in excluding the proposed evidence.
2. The difficulty with the plaintiffs’ case is that they showed by their own witness, Mr. Lee, that he purchased the three lots as the agent for these plaintiffs and the defendants in the execution, and as such