
    Hubbard v. Elden.
    
      Sheriff’s sale — Investment of balance of fund, by order of court — Sheriff's liability.
    
    1. "When on the sale of mortgaged premises by a sheriff, as special master commissioner, there remains in the hands of the sheriff a portion of the proceeds, after paying the costs and the agreed and adjudged liens, and disputed claims for such balance are pending in the case, the sheriff and his bondsmen are liable for the sheriff’s failure to pay such balance to the rightful claimant, as adjudged by the court, though it is not demanded until his term of office expires.
    2. And in such case, before the rightful claimant is ascertained,.should the court order the sheriff to loan the money in a certain manner and on certain terms, no partial compliance with such order, without showing good reason why the order was not strictly obeyed, will release such liability of the sheriff or of his bondsmen.
    Error to the District Court of Jackson county.
    The original action was on a sheriff’s bond. The petition avers that Robert W. Hubbard was elected sheriff of Jackson county in October, 1872, and duly gave bond, conditioned “ that if the said Robert "W. Hubbard shall faithfully discharge all and singular the duties of sheriff of said county of Jackson for the term aforesaid, according to law and the best of his ability, then this obligation to be void, otherwise, to be and remain in full force and virtue in law.” The bond was approved, and Hubbard became sheriff.
    And the petition further avers that: “ January, 1874, such proceedings were had in a cause then pending therein, wherein Stephen N. Vaughn et ah, executors of Thomas Vaughn, deceased, were plaintiffs, and George Martin et ah were defendants, that the sale of certain premises of George Martin by the sheriff of said county, as special master commissioner, upon the foreclosure of a mortgage given by George Martin to Thomas Vaughn, theretofore made by order of said court, was duly confirmed, and said sheriff ordered to make a deed to the purchaser thereof; that after paying the plaintiff's in said suit,the full amount of the judgment and decree rendered therein, and also all the costs and expenses of said suit, and of said proceedings for the sale of said mortgaged premises, there remained in the hands of Robert "W. Hubbard, as such sheriff, a balance of the proceeds arising from said sale of $442.35. That at said December special term, A. D. 1873, William Elden was made a party defendant in said cause and proceedings, and filed his motion in said cause, setting up his lien upon said premises so sold, as aforesaid, and asking that the balance of said proceeds, after paying said mortgage and the costs of said proceedings for the sale of said premises, be ordered to be paid to him upon his lien; that afterward, to wit, on June 11, A. d. 1874, of the May term, A. D. 1874, upon the motion of the said George Martin, the sheriff, Robert W. Hubbard, was ordered to loan on interest said money, and take mortgage security for the same on real estate in this county of value to double the amount of said money in his hands, exclusive of buildings thereon, conditioned to be paid when demanded after ninety days, for the use and benefit of such party or parties as the court might thereafter find entitled to the same; that said sheriff, wholly disregarding his duty in that behalf, and refusing to obey said order of the court in the premises, either in its letter or in its spirit, wrongfully converted said money to his own use, and loaned the same out without security. That at the May term, a. d. 1878, such further proceedings were had in said cause that upon the further hearing thereof upon the answer and cross-petition of William Elden it was by the court found that William Elden had the first and best lien on said fund, and was entitled to have and receive the same. That on said May 20, a. d. 1878, the said William Elden was, and ever since has been, and now is, entitled to have and receive the said sum of $442.35, together with interest thereon, from said June 11, a. d. 1874, from Robert W. Hubbard, as said sheriff.”
    It also averred demand by Elden, and neglect and refusal to pay by Hubbard.
    To the petition demurrers were filed by Hubbard and by his sureties, which were overruled.
    Then Hubbard and his sureties answered and set up five matters of defense, the second and principal defense being as follows:
    “ Second Answer. — The said defendants for their second answer say: That afterward, and without their knowledge and consent, the said George Martin, the said Elden acquiescing therein, at the May term, a. d. 1871, of said Jackson common pleas, procured some case of Vaughn against Martin to be docketed, and then without the knowledge and consent of these defendants procured said order, authorizing the sheriff to loan, not $442.35, but $-, according to the terms set out in the petition in this case; and the defendants here deny that said Hubbard converted said money to his own use, and loaned the same without security; and said defendants deny that said court at any time had any authority or control of said funds, and say that they, said defendants, are not bound by said order so procured by said George Martin, and acquiesced in by said William Elden, and which said case so docketed was not, and is not, the original case of foreclosure.”
    The reply denied “ each and every averment of the answer that is inconsistent with the allegations and statements of the plaintiff.”
    On the trial the court found for Elden, and gave judgment against Hubbard and his sureties.
    A bill of exceptions was filed, and the district court affirmed the judgment. Hubbard and his sureties now seek a reversal of that judgment.
    
      John T. Moore and C. A. Atkinson, for plaintiffs in error.
    The effect of the order to loan the money converted it into a fund in the possession of the court, for the safe-keeping of which the sheriff’s bondsmen are not responsible. They are not liable for his acts as a money-lender. Webb v. Anspach, 3 Ohio St. 522.
    The order to loan was the act of Elden and Martin, the only parties interested. It matters not that they used the solemnity, of the court records; it was still their act. They wanted the fund to accumulate, and they agreed to lend it out to be repaid, with interest, ninety days after their rights were determined. The time for payment was extended ninety days after demand, and this fact will inure to the relief of the sureties. Day v. Ramey, 40 Ohio St. 446; Blazer v. Bundy, 15 Ohio St. 57; McComb v. Kittridge, 14 Ohio, 348; Boling v. Young, 38 Ohio St. 135.
    Sureties are liable only according to the express terms of their bond. State v. Medary, 17 Ohio, 554; Hall v. Williamson, 9 Ohio St. 17.
    ■ J. R. Challen, J. W. Laird, and J. M. Tripp, for defendant in error, commented upon the eases cited by counsel for plaintiffs in error.
    Elden gave no extension of time for payment, for a consideration, or otherwise. He insisted upon an order that the money be paid him as soon as he ascertained the balance in the hands of the sheriff.
    
      "With respect to the objection that sureties are only liable according to the express terms of their bond, we refer the court to United States v. Maurice, 2 Brockenbrough, 96, cited in Hall v. Williamson, 9 Ohio St. 17, 24, for the law distinguishing the case at bar from the latter case.
    How far the order of the court would have been a protection to Hubbard, had he complied with it, or whether the court had authority to make it, is not necessary to consider. The order was wholly disregarded and ignored.
   Follett, J.

On June 11, 1874, Robert W. Hubbard, as sheriff, held the $442.35. The mortgage lien and costs had been paid, and George Martin would have received this money had not William Elden become a party to the action and set up a superior claim to it.

Several questions presented by the plaintiffs in error are unimportant, by reason of the fact that, as sheriff, Hubbard then held the money for the rightful claimant, and it did not affect Hubbard’s liability whether the court ordered the money paid to Martin or to Elden. The court found Elden to be the rightful claimant.

The question is, did this order to loan this money, and the acts of the sheriff done by reason of that order, release either the sheriff’s liability to pay the money to the rightful claimant of the same, or release his sureties from their liability on the bond ?

It is claimed that the court had no power to make the order to loan; if this be so, the making the order did not release either the sheriff or the sureties.

The order directed the sheriff to loan the money on interest and take mortgage security for the same on real estate in Jackson county of double the value of the money in his hands, exclusive of buildings thereon.

As the money was not loaned in accordance with the order (and there is no averment or claim that it was), the question does not arise as to whether a strict compliance with the order would- have released the liability of the sheriff’ or that of his sureties. Elden is not presumed to have consented to any thing but a strict compliance with the terms of the order.

Hubbard and his sureties in their answer do not deny the averment of the petition that on June 11, 1874, the $442.35 were in the hands of Hubbard as such sheriff; and they do not show that he invested, or tried to invest, any part of that money, as directed by the order; and they do not try to account for any part of the $442.35. This leaves their liability in full force, though the money was not demanded until the sheriff’s term of office expired.. See King v. Nichols, 16 Ohio St. 80; Brobst v. Skillen, Ib. 382. But on the trial of the case Elden showed in his evidence that, on June 13, 1874, two days after the entry of the order to loan, Hubbard, as sheriff, may have loaned to one Andrew J. Dever this $442.35; as his successor in the sheriff’s office, about a year after Hubbard left the office, found among some waste papers in a pigeon-hole in his office, a mortgage purporting to be from Dever and wife to Hubbard as sheriff, to secure a loan of this amount, to be paid as required by the order of court; but the land described in the mortgage was only about $300 in value, the mortgage! was not .left for record or recorded, and when found Dever had made an assignment under the insolvent laws.

But no such unexplained partial compliance with the order to loan by Hubbard, even if averred in the answer, could release either his liability as sheriff or the liability of his sureties. There is no error shown.

Judgment affirmed.  