
    Sparrow v. Hosack.
    The owner of land incumbered by a judgment lien may recover from the judgment creditor an excess over the balance due on the judgment, received by the latter on a sale under a vendi; notwithstanding the judgment creditor was the purchaser and the owner was not a party to the judgment.
    Eebob to the District Court, of Franklin County.
    
      On. May 1st, 1868, certain land in Delaware county belonging to one Polly Adams, was levied on to satisfy execution issued on a judgment for $1,557 and costs, rendered in the preceding month in the Franklin common pleas against her and others" and in favor of one Jaeger. Soon after the levy, the sum of $816.61 and costs was made and paid on the judgment, and the fact stated on the court journal.
    Sparrow became owner of the judgment, with full knowledge of the payment made and the balance due. Hosack by deed of general warranty became owner of the land, holding under Polly through intermediate conveyances with usual covenants of warranty. A vendi was issued for .the sale of the land to satisfy the judgment to its full original amount; no credit for or mention of the payment having been entered thereon. .
    The land was struck off to Sparrow for $1,468, who paid the sheriff the costs only, (amounting to $81.07); and the sale was confirmed in January, 1870, and deed delivered. The amount actually due from Sparrow on account of the purchase was $616.45, after deducting from his bid the balance due on the judgment with accrued costs. In his petition counting on the above facts, Hosack, who was plaintiff below, claimed that the above sum was had and received by Sparrow for the use of the plaintiff.
    The administrators of Sparrow demurred to'the petition. The common pleas sustained the demurrer and gave judgment for the defendants. The district court reversed the judgment. To reverse this judgment of reversal is the object of the present proceeding.
    
      F. L. S. O. Taylor and John B. Burnett, for plaintiff in error.
    The demurrer to the second amended petition should have been sustained on two distinct grounds.
    
      First. — It does not show that the plaintiff, Hosack, paid any thing on his contract of purchase, or that he ever agreed to pay any thing, or that he is entitled to recover from Sparrow or any one else. It is stated that on January 5th, 1870, J. B. Foss conveyed to Hosack, but it is not claimed that it was for a consideration. If he has paid nothing, he is entitled to recover nothing, and that he has paid nothing will be assumed from his failure to aver it.
    This assumption is sustained by what is averred as well as ' by what is not. See 15 Ohio St., 514.
    If Polly Ann Adams sold subject to the entire judgment lien, of which there seems to be no doubt and no averment to the contrary, then she was entitled to the amount which the makers of the note had paid. And in the absence of any order of the court, the sheriff pays to the plaintiff in execution, and after satisfying his judgment then the.statute directs him to pay the balance to the judgment debtor, which in this ease was Polly Adams. S. & C., 1080; Rev. Statutes, § 5408.
    
      Second. — There *is no privity of contract between Hosack and Thomas Sparrow, who purchased at sheriff’s sale.
    The sheriff was and is entitled to the purchase ihoney, and in contemplation of law it was in his hands subject to the order of the court, hie having returned the sale of the property.
    If the purchase money was not in fact paid to the sheriff, he is the party, and the only party to sue, and all other persons interested can look to him, and can enforce their claims by proceedings against him. Hosack was not a party to the sale or to the proceedings which resulted in thé sale. He is an entire stranger to the whole record. He took a conveyance while the property was advertised for sale to satisfy the judgment and levy, and only a few days before the day of sale, and is chargeable with knowledge of the lien thereon. His remedy, if he has any, is on his vendors’ covenants, and it is plain, adequate and complete.
    
    Under no circumstances can Hosack maintain an action against Sparrow’s administrators. If they, are liable at all it is to the sheriff only. 5 Yerger (Miss.) 66 ; 21 Barb., 17;' 11 Minn., 220; 4 Watts, 160; 29 Ohio St., 534, 535.
    In many, if-not" in all the cases cited by counsel for' defendant in error, there was an implied promise to pay. In the case at bar there was no implied promise, or any promise, on the part of Sparrow to pay Hosack.
    Sparrow made an express promise to pay the sheriff; and where there is an express promise to pay one person, there can be no implied promise to pay some one else. His only contract was with the sheriff, and this express contract the sheriff can enforce, even if Sparrow had paid the money to Hosack. Most of the eases cited by counsel for defendant are the common well settled cases, under the common law pleadings, where there was an actual receipt of money by one person which belonged to another.
    Under our code the common count for money had and received, can only be sustained by proof, that money has been actually received, by one, for the use of another. Swan’s Pleading and Practice, 178; Chitty on Con., 602.
    
      Charles JE. Burr, for defendant in error.
    The theory upon which plaintiff below instituted this action, and which he still believes to be correct is this, viz., that upon the facts stated, an action at law will lie against Sparrow, who by his fraud upon the officers obtained the surplus, to recover back the excess as for money had and received to Hosack’s use.
    By the assignment of the judgment, Sparrow took the place of the judgment creditor. He owned and controlled the judgment. It is true he also became the purchaser of the land, but no confusion ought to be allowed to enter the mind because he occupied this double position. Counsel on the other side assume that this suit is brought against Sparrow because he purchased the land. Not so. Such an assumption is a fatal mistake. Suppose a stranger had purchased the land, and paid the purchase money to the sheriff, and the sheriff had paid the whole to Sparrow, would we then have sued the purchaser ? Certainly not. No possible ground of action would have existed against him. Having paid the' full amount of the purchase money to the officer entitled to receive it, he discharged his whole duty. But in such case we.would have sued Sparrow just the same as we have done now. We sue him not as purchaser of the land, but as owner of the judgment, who as such owner, by an abuse of the process of the court, collected on his judgment money which had already been paid. The fact that Sparrow purchased the land cannot surely relieve him from any responsibility which he has incurred as judgment creditor in the collection of his debt. Counsel on the other side are entirely correct in saying that in contemplation of law, Sparrow actually paid the money to the sheriff. Up to that point we make no complaint. But when Sparrow, as judgment creditor, took from the sheriff the whole $1,468, knowing that $616 of it did not belong to him, but did belong to Hosaek, we think his responsibility commenced.
    See 3 Blackstone’s Com., 163; Mason v. Waite, 17 Mass., 558; Mall v. Marston, 17 Id., 579; 5 Ohio, 267; 45 Barb., 69; Anderson v. Grage, Dudley (S. C.), 319; 4 Dana, 70; 38 Cal., 372; 41 N. Y., 303; 15 Wend., 321; 5 Cowen, 488.
    Instead of Mrs. Adams being entitled to the surplus, after satisfying the judgment, she had parted with that right by the successive conveyances of the property levied upon from her to Hosaek. Freeman on Executions, 447; Herman on'Executions, 279.; Bitting f Waterman’s Appeal, 17 Pa., 211; JEvery v. Mdgerton, 7 Wend., 259.
    But has Hosaek a right of action against the sheriff? If so, on what ground? The writ was regular on its face. It issued from a court having jurisdiction. ■ The sheriff hut obeyed his writ. In such case no action lies'against the officer. Swan’s Treatise, (11th ed.), p. 501; Taylor v. Alexander, 6 Ohio, 145.
   Mabtin, J.

It must be conceded that Sparrow incurred an obligation to pay some one the excess of his bid over the amount due on his judgment. Good faith required that he pay it according to his contract to the sheriff before receiving his deed. Clearly, he paid the amount due on his judgment by the satisfaction thereof wrought in taking title as stated. This was done rightly and according to the common course in such cases. He cannot be permitted to take advantage of his own wrong in appropriating the excess to his own use and say that thereby he received from the sheriff no equivalent for money. He would doubtless have been required to pay the sum in dispute if he had truly disclosed the amount of his judgment. Instead of this, he collected more than was due him. Hosack had the right before the sale to pay off the judgment, and thus lawfully and properly retain the amount involved in this suit. And then he would have had his action for reimbursement on the covenant in his deed. Sparrow occupied a double relation. As purchaser he was bound to pay the full amount of his bid, and if he had been such merely he could not have practiced this fraud. As judgment creditor he was bound to pay only the costs, if his judgment equalled or exceeded his bid; and only because he was such creditor he was enabled to and did deceive the sheriff.

' The vendi was a means to an end. Its sole object was to provide payment of the judgment. It commanded the sheriff to make the original amount in full. And the actual transaction operated a collection to the full value of the land and the payment of the same, less costs, over to the creditor.

It was as effectually and precisely done as if Sparrow the purchaser had counted down the amount of his bid en the day of sale, and the sheriff on confirmation had counted back the same less costs to Sparrow the creditor.

In legal effect this was done; and in the transaction the sheriff followed his writ, and for aught shown in this record, is protected in so doing. It follows that Sparrow is liable to the extent of the excess as for money had and received for the use of the party entitled to it.

Is Hosack that party ? If his claim were to collect unpaid purchase money it could not be sustained. The sheriff and the purchaser are the only parties to the sale; and as a general rule such action must be prosecuted in the name of the sheriff or in his right. But as we have seen, this action is not for purchase money, but to recover money made on execution to the extent that it had been previously paid.

It is contended, however, that Hosack may not have paid a valuable consideration for the land, and further that there is no privity between him and Sparrow.

It is admitted that Hosack was owner in fee subject to a lien for the balance due on the judgment. He could not have complained, against Sparrow, of a sale to satisfy the lien. In the event of such sale he would have had his action on the covenant in the deeds. And his^land being merely a security, he would in equity have been entitled to exoneration from the judgment debtors — the principals. It is difficult to see on what theory Polly Adams is interested in the fund in controversy — she did not pay it or any part of it directly or indirectly; nor is she injured or subjected to liability in consequence of its payment. It was made exclusively out of the property of Hosack, and in equity belonged to him. True, there is no privity of contract between him and Sparrow. Nor is it essential there should be in order to maintain assumpsit.

Counsel argue, and perhaps rightly as a general rule, that under the code system the old count for money had and received can be employed only where money has been actually received by a defendant for plaintiff’s use. This may be.granted, and the allegation of the petition that the sum was had and received by Sparrow for the use of the plaintiff be rejected as a statement of a mere legal conclusion. Nevertheless a perfect statement of a cause of action remains. Not the common count for money had and received, but a recital of facts which conclusively shows that Sparrow received the equivalent of money for which in justice and honesty he should have accounted to Hosack.

It results that the demurrer was not well taken, and that the district court was right in so holding.

Judgment affirmed.  