
    Calvin v. Bruen
    1. A person is liable for his failure to deliver to the proper parties the money paid him for a note and mortgage taken by him as sheriff during his term of office, for the deferred payment of purchase money of land sold on partition, although no special order of distribution thereof had been made by the court, and the money was paid him after the expiration of his term of office.
    2. Such liability is not discharged by paying the money to the attorney who procured the partition sale, and who was not specially authorized to receive the same, either by the parties entitled thereto, or by order of court.
    
      3. Such liability may be enforced by tbe parties in interest in a joint action against such person, when no objection is made for misjoinder ; nor will the fact that the person sued is designated as “ late Sheriff of H. county,” make aDy difference.
    Error to the District Court of Hamilton county.
    The original petition, filed in the court of common pleas, alleged that Mary Bruen and her co-defendants in error were tenants in common of a tract of land of which she sought partition, and that such proceedings were had thereon that the court found Mary Bruen the owner of one-seventh, and John McAuley, William McAuley, James McAuley, Margaret Ferris and Jane E. McAuley, one-seventh each; that the plaintiff in error, who was then sheriff of Hamilton county, was ordered, by proceeding had in said cause, to sell the real estate according to law; that he sold the premises to Azariah Compton, and that the sale was confirmed, and the sheriff, among other things, was ordered to take said Compton’s note for one-third of the purchase money, to-wit, $1,047.90, payable in two years from the date of sale with interest; but Compton gave this note to the defendant Calvin, as sheriff of said county, instead of to the plaintiffs, which money, the petition says, was due and owing to the plaintiffs as and for their interest in said lands ; that on the 29th of January, 1867, Compton paid said note to the defendant as sheriff of said county, to-wit, $1,174.92 and the note was thereupon surrendered, without the conseno of the plaintiffs, to the maker ; that there is now due to them from said Calvin, as sheriff, the sum of $1,174.92, with interest from January 29th, 1867, being the amount received by him as above stated, for which they ask judgment.
    Calvin answered that the only orders of distribution ever made in the case in said petition described, are three, respectively made and entered November 14, 1864; December 12, 1864; and February 16,1865, and he averred that he had fully complied with and obeyed, all and singular, the provisions of said orders, and in obedience thereto that he had paid all the moneys received by him from the proceeds of said sale to said O. & E. T. Brown, the attorneys therein named, and holds their receipts therefor. ,
    
      The entry of November 14,1864, finds the respective interests of said parties, and it was therefore ordered, that, by the oaths of three named commissioners, partition be made of said premises in said proportions.
    The entry of December 12th, 1864, finds, upon the return of the sheriff, and the report of the commissioners, that the same are correct, and in conformity with law, approves and confirms the same, and neither of said parties electing to take the said premises at the valuation, orders that the premises be sold at public sale, by the sheriff of said county, according to law, and that he return his proceedings in the premises to this Court without delay.
    The entry of February 16th, 1865, is to the effect that the said Isaac and Mary Bruen, appeared by O. & E. T. Brown, their attorneys, and on their motion the Court approves the sale ; and it appearing that the purchaser desires to pay twotliirds of the purchase money in cash, and that the defendants are willing to receive the same, it is. ordered that the sheriff receive the said two-thirds of ’ said purchase money, and take a note secured by mortgage for the one third payment in two years, with six per cent, interest, and the sheriff was ordered to convey the premises to the purchaser in fee simple.
    
      “ And it is further ordered that the said sheriff out of the moneys in his hands, pay, first, the costs of this suit, taxed at $--, including a counsel fee to O. & E. T. Brown of $300, one-half of said fee to be paid by plaintiff; and the residue of said moneys to be paid to said attorneys to be distributed to the said parties in the proportion set forth in the former order of this Court; and that said attorneys file the receipts for said moneys paid to said parties in this cause.”
    Thereupon follow two receipts, both signed by O. & E. T. Brown, one dated February 20th, 1865, from R. Calvin, sheriff, for $1,653.12, being the amount received by said sheriff in the case, less the costs in said action, and being the sum ordered by the Court to be paid O. & E. T. Brown, attorneys for the several parties in said cause. The second receipt is dated January 30th, 1867, from R. Calvin, sheriff, for $1,175.04, being the amount received by said R. Calvin on the note of the purchaser, including interest, and due the several distributees in the case.
    The defendants in error filed a general demurrer to such answer, which was sustained, and j udgment rendered in favor of the defendants in error against the plaintiff in error for $1,793.89. To reverse this judgment a petition in error was filed in the district court setting up as error that the court of common pleas erred in sustaining the demurrer of the defendants in error to the answer of the plaintiff in error, and in entering judgment for said defendants in error. The district court affirmed the judgment of the common pleas, and to reverse this judgment the present petition in error is filed.
    Hoadly, Johnson & Golston for plaintiff in error.
    
      O. W. Go wan for defendant in error.
   Follett, J.

Calvin’s term of office as sheriff expired January 2d, 1867, and he had retained the note and mortgage in his possession, and received the money paid thereon January 29th, 1867.

The statute then in force — S. & C., p. 897, sec. 10 — read: “And the said money dr securities shall be distributed and paid by order of said court to and amongst the several parties entitled to receive the same, in lieu of their respective parts and proportions of said real estate or estates, according to their just rights and proportions.” It is not claimed that any other party had • any right to or interest in this money or securities. And the money or securities have not been distributed and paid to the defendants in error, who were found to be the parties entitled to receive the same. It is seen by the answer of Calvin that the court did not order this money or securities to be paid to O. & E. T. Brown ; and as attorneys they had no authority to receive any part of the last payment.' The services required of them had ceased, and by order of the Court they had been paid out of other funds. Their receipt from Calvin, on January 30th, 1867, of money paid from them to Calvin, was no distribution or payment to the defendants in error, who were the parties entitled to receive the proceeds of the land thus sold in partition.

The original action was by defendants in error against Richard Calvin, late sheriff of Hamilton County, Ohio, to the form of which action no objection was made in the court below, and now it is too late. The omission of a specific order of court to pay this money or hand the securities to the proper parties, was fully provided for by the statute directing the same to “ be distributed and paid” * * * “ to and amongst the several parties entitled to receive the same.”

The case of Preston v. Compton, 30 Ohio St. 299, is not like this casé. The defendants in error can stand npon their own rights, and they can hold the plaintiff in error liable for the money so received for them by him, whether he obtained it rightfully or wrongfully as sheriff, or after his term of office expired.

The case of Brobst v. Skillen, 16 Ohio St. 382, sustains this conclusion.

There was no error in the district court, and the judgment is affirmed, with costs.  