
    Harris et als. v. Murfree.
    
      Summary Proceeding against Sheriff and Sureties.
    
    1. _ Ukeoution, failure to malee money on; measure of damages. — Where a sheriff fails to make money on an execution, which, by the use of duo diligence, could have been collected, by a sale of lands of the defendant in execution, the measure of damages, for which the sheriff and his sureties are answerable, is the sum which would have been produced by a sale of the land. To show that the sheriff was wanting in diligence, oral evidence is admissible to prove that the defendant in exeeufion was in possession of the land, but not that he was its reputed owner.
    2. Quere. — Is a plaintiff entitled to any judgment in a summary proceeding, or to maintain it at all against the sheriff and his sureties, under section 3033 of the Revised Code, unless the evidence shows that the whole amount of the judgment could have been made by use of due diligence ; the only judgment authorized by the statute being for the amount of the execution, interest, and ten per cent, damages.
    3. Charge to jury; when erroneous. — A charge to the jury that “the title of the defendant in execution has been sufficiently proved ; that the only question for them to determine is the true value of the land; that its market value, or whac it would have brought at execution sale, could not be considered,” is a manifest invasion of the province of the jury.
    Appeal from Circuit Court of Hale.
    Tried before Hon. George H. Craig.
    At the fal’l term, 1873, of the circuit court of Hale, Murfree recovered a judgment against John and Jabez Nelson. Execution was issued and placed in the hands of appellant, as sheriff, on the 21st day of November, 1873. Harris kept the execution in his hands until March, 1874, and then returned it with this endorsement: “Returned no property found in my county, subject to the satisfaction of this execution.” On the making of this return, Murfree moved for a judgment against the appellant and his sureties, alleging that the failure to make the money on the execution was caused by lack of due diligence.
    Harris answered, denying lack of due diligence, and a trial was had on a plea' of not guilty.
    Murfree introduced a witness, who testified that the defendants in execution were the reputed owners of an undivided interest in certain lands in Hale county during the time the execution was in the hands of the sheriff, but that he did not know what the lands would have brought in the fall of 1873. It was admitted that the only property which the defendants had, liable to pay the execution, was their undivided interest as heirs at law, in the estate of a brother, whose estate was being administered on at the time. One of the plaintiffs’ attorneys testified that he had informed the sheriff, before the -return of the execution, of the interest of the defendants in the estate of their brother, and advised him to levy on the same.
    Harris testified that he made diligent enquiries, and became convinced that a levy and offer of sale would only increase costs, and for that reason he had returned the execution. The court then charged the jury that “ the defendants’ title to the property was sufficiently proved, and that the only question left for them to determine was the true value of the property. You cannot consider its market value, or what it would have brought at execution sale.”
    The jury found that defendant’s interest in the lands was worth one thousand dollars, and the court thereupon rendered judgment for that amount in favor of Murfree, against Harris and his sureties, hence the appeal.
    Garrett & Walker, for appellants.
    Walker, Pittman & Walker, contra.
    
   BRICKELL, C. J.

This was a summary proceeding against the appellants, a sheriff and his sureties, under section 3033 of the Revised Code, to recover judgment for the default of the sheriff in not making the, money on an execution, which could have been made by due diligence. An issue was formed between tbe parties, which was submitted to a jury for trial, the issue being a denial of tbe truth of tbe allegations of the motion. Tbe official capacity of tbe principal, nor tbe fact of tbe suretyship of bis co-defendants was controverted; nor was tbe fact that an execution in favor of tbe plaintiff in the motion, corresponding to that described, came to tbe bands of tbe sheriff to be levied and returned. Tbe point of controversy was as to bis ability, by due diligence, to have levied it on property subject to it, and sufficient for its satisfaction. Tbe evidence was entirely oral, and related to tbe ownership by tbe defendants in execution, of real estate, and its value. The court charged tbe jury as follows: “ Tbe defendants’ title to tbe property has been sufficiently proved, and tbe only question left for you to determine is as to tbe true value of tbe property. You cannot consider its market value, or what it would have brought at execution sale.” To this charge an exception was reserved, and it is now assigned as error.

Tbe charge assumes, as fully proved, all that tbe evidence tended to prove — that tbe defendants in execution bad an interest in lands, tbe subject of levy and sale, and that tbe sheriff was fully informed of such interest, or by tbe use of due diligence could have obtained such information in time to have levied tbe execution, and made tbe money. It is a manifest invasion of tbe province of tbe jury, and is of consequence erroneous.—Jones v. Fort, 36 Ala. 449 ; McDougald v. Rutherford, 30 Ala. 253. It is also an invasion of the province of the jury, in not referring to them tbe credibility of tbe testimony, which was entirely oral.—1 Brick. Dig. § 98, 342. Tbe plaintiff was not entitled to a judgment without affirmative proof, satisfactory to tbe jury, that by due diligence tbe money could have been made on the execution by tbe sheriff.—Adams v. White, 2 Ala. 37. Whether such proof bad been made, and its sufficiency, tbe jury ought to have determined. Tbe court, by tbe charge, determines it for them, and limits their finding to tbe value of the lands. Charges less objectionable than this have been often repudiated by this court, and tbe duty of a judge in charging a jury not to assume as proved any fact which tbe evidence only tends to prove, and to leave tbe jury free to pass on tbe credibility of tbe evidence, enforced in strong terms.

The charge is also erroneous in narrowing tbe inquiry of tbe jury to tbe true value of tbe lands, and instructing them not to consider tbe market value, or what tliey^ would have brought at execution sale. Á sheriff, in making a levy, is bound to bear in mind, tbe fact known to all, that property, real or personal, at forced sales, under legal process, but seldom commands its real value. He must, of consequence, make his levies with a view to this fact, and cannot be charged for an excessive levy because the real value of the property seized may exceed the sum necessary to satisfy the execution, when the extent of its probable sacrifice at forced sale does not render the levy disproportionate. The sacrifice of real estate at forced judicial sales was the cause to which the redemption law owes its origin, the first of which was entitled “An act to prevent the sacrifice of real estate.” Pamph. Acts 1841-2, p. 8. The true measure of the liability of a sheriff for a failure to levy on and make sale of lands, under execution, is the sum which would have been produced by the sale. That is the extent of the injury the plaintiff has sustained, and that alone is the test by which it can be determined whether by due diligence the money could have been made on the execution.—Governor v. Powell, 9 Ala. 83 ; French v. Snyder, 30 Ill. 339.

In Johnson v. Cunningham, 1 Ala. 249, which was a proceeding similar to this, a suggestion against a sheriff, that he could, by the use of due diligence, have made the money on an execution, it is said it is permissible to show by oral evidence that the defendant in execution was in possession of the land, but not that he was its reputed, owner: It is too plain for argument that the evidence that the defendants in execution were the reputed owners of an interest in the lands, was not admissible. It would have been more appropriate to have objected to its introduction when offered, than silently have permitted it introduced, and then requested charges declaring its insufficiency. It is not necessary to consider the other matters presented by the assignment of errors; they will not probably arise on another trial.

The judgment authorized by the statute, under which the plaintiff is proceeding, is for the amount of the execution, interest, and ten per centum damages. It may be well for the parties to consider whether the proceeding is maintainable, unless the evidence shows the whole amount of the execution could, by due diligence, have been collected, or whether any other judgment than that prescribed can be rendered. ,

The judgment is reversed and the cause remanded.  