
    *Lloyd v. Erwin’s Adm’r.
    November Term, 1877,
    Richmond.
    Absent, MoncurE, P.
    1. Judicial Sales — Defects in Commissioner^ Bond — Liability of Purchaser. — A purchaser at a judicial sale of land pays the purchase money to the commissioner; but the commissioner has not executed the bond required by the decree, or the bond executed by him is disapproved by the clerk. The purchaser has paid in his own wrong, and the land is liable for the purchase money received by the commissioner and misapplied, though the land has been conveyed by the commissioner to the purchaser, as the decree directed to be done when the purchase money was paid.
    2. Same — Same—Same—Remedy.—In such a case, the parties entitled to the fund are not bound to proceed against the commissioner and his sureties m the bond he executed, but which the clerk disapproved, before proceeding against the land, to have it subjected to the payment of the purchase money misapplied by the commissioner.
    This was an appeal from a decree rendered by the circuit court of Fairfax county, in a cause depending therein, in which William H. Erwin’s administrator was plaintiff, and the heirs of said Erwin were the defendants. The object of the suit was to have a sale of a part of the real estate of William H. Erwin, deceased, for the payment of his debts. The cause was so proceeded in that at the June term, 1871, of the court a decree was made for the sale of a house and lot in Falls Church, upon the terms of ten per cent, of the purchase money in cash, and the balance on a credit of six, twelve and eighteen months, with interest, to be secured by the bonds of the purchaser, with retention of the title until *the last payment is made. And M. D. Ball and J. C. DePutron were appointed commissioners to execute the decree. But before receiving any money under the same they, or one of them acting, shall execute bond in the penalty of $1,000, before the clerk of this court, conditioned for the faithful performance of this or any future decree in this cause.
    At the June term, 1872, of the court, the commissioners reported that they had made a sale of the house and lot to Tester Lloyd, for $1,800, and that he had paid $50, and was ready to make the full cash payment on confirmation of the sale, and that he had executed his notes for the deferred payments, and desired to anticipate the same.
    At the same term of the court the sale was confirmed, and the purchaser was authorized to anticipate the deferred payments; and upon the money being paid, the commissioners were directed to pay the costs of the suit, pay off the debts reported against the estate, and bring the balance into court.
    There was a further report of debts due from Erwin’s estate; and at the June term, 1873, the court made a decree that the commissioners should pay these creditors forthwith, and pay over the balance of the money on hand, and the unpaid bond to the guardian of the infant heirs of Erwin. And it was further decreed that upon the payment of the balance of the purchase money of the property sold by the commissioners to the guardian of the said heirs, the said commissioners, or either of them, were authorized to convey to the purchaser the said property by deed. And it appears that the said commissioner did, by deed bearing date the 7th day of July, 1873, convey to Lester Lloyd the said house and lot, reciting that he had paid all the purchase money; and the deed was duly admitted to record.
    *The purchase money received from Lloyd not having been paid over by the commissioners, at the November term, 1874, M. D. Ball, the commissioner who had received the purchase money, was directed to c*rry out the provisions of the decree formerly made in the cause within sixty days, and that he should settle his accounts before a commissioner. And a rule was made upon Lloyd, returnable to the next term of the court, to show cause why he should not bring into court the amount of the cash payment and of the first two instalments of the purchase money for the property sold to him; it being suggested to the court that the payment thereof by him to the commissioner of sale was unauthorized, because of the failure of the commissioner to file with the clerk the bond required of them by the decree.
    Lloyd answered the rule. He says he had no connection with the case and knew nothing of the proceedings in the cause until his purchase of the property; that after the property was cried off to him as the purchaser he was informed that M. D. Ball, one of the commissioners, was the party duly qualified to receive of him the amount of the purchase money, and that he paid to Ball the cash payment and two bonds of $340 each, of the deferred instalments. The third bond he had paid under the decree of the court to the guardian of the infant heirs of Erwin. He refers to the several decrees of the court made since the report of the sale, and to the conveyance to him by the commissioners, and insists that he cannot be prejudiced by the action of the commissioners; that he was entirely ignorant of any irregular or improper acts on their part, or on the part of either of them; and that their acts being subject to the supervision and control of the court, and finding them, so far as he was concerned, sanctioned and approved by *the court, he rested securely upon their sufficiency and regularity.
    It appears that, prior to the sale of the house and lot, Ball executed a bond with sureties in the penalty of $1,000, with condition for the faithful performance of his duties under the decree for the sale, and left it with the clerk of the court; but this bond was endorsed: “Not received by the clerk.”
    It appears that on the day of the sale De-Pruton, the other commissioner, who was counsel for the estate of Erwin, went to the clerk’s office to execute the bond directed by. the decree of sale, with his surety, and accompanied by Lloyd and the administrator of Erwin. As to what occurred there, he (Lloyd) and the clerk give different and conflicting accounts.
    At the November term, 1876, the cause came on to be heard upon the rule, and it appearing to the court that Ball was insolvent and nothing could be made out of him; and the court holding that he had never executed a bond as required by law, and was therefore unauthorized to accept payment of the purchase bonds, and that the payments made by Lloyd to him on said bonds did not discharge Lloyd, but that he and the property purchased was liable therefor in the hands of the purchaser; but it further appearing that of the money received by Ball he had properly accounted for $436.14, leaving $840.06 unaccounted for, it was decreed that Lester Lloyd do pay to commissioners named the said sum of $840.06, with interest from the 1st of September, 1872; and unless it was paid in sixty days, the said commissioners should resell the property upon the terms of the original decree. And thereupon Lloyd applied to this court for an appeal; which was allowed.
    Thomas and Wells, for the appellant.
    *S. F. Beach, for the appellee.
    
      
      Judicial Sales — Defects in Commissioner’s Bond — Liability of Purchaser. — The headnote in Whitehead v. Bradley, 87 Va. 676, states the law as follows, “Where purchaser, at sale made under decree of court, pays the purchase money to sale commissioner who has not given the bond required by law, such payment is invalid, unless certificate of clerk that such bond has been given was published with advertisement of sale. Code 1887, secs. 3397, 3399.” See for very similar cases, Woods v. Ellis, 85 Va. 471; Lee v. Swepson, 76 Va. 173; Tyler v. Toms, 75 Va. 125. See also, Brown v. Taylor, 32 Gratt. 135, where the principal case is cited for the proposition that the mere possession of a bond is not such evidence of property as will justify a payment to the holder, without authority express or implied, for the owner to collect the same. Thornton v. Fairfax, 29 Gratt. 682; Donahue v. Fackler, 21 W. Va. 130; Flesher v. Hassler, 29 W. Va. 405, 1 S. E. Rep. 581.
    
    
      
      Same — Same—Subrogation.—In Lee v. Swepson, 76 Va. 173, and Tyler v. Toms, 75 Va. 116, it was held that if in such case the purchaser should have to pay the purchase money a second time, he •would be substituted to the creditor's rights under a decree requiring the commissioner to pay them.
    
   Burks, J.,

delivered the opinion of the court.

The court is of opinion that the decision of this case is controlled by the authority of Hess & als. v. Rader & wife & als., 26 Gratt. 746.

In each case the commissioner collected the purchase money from the purchaser of land at a judicial sale without giving the bond required by the statute and the decree under which he acted, and then made default. The attempt is made to withdraw this case from the controlling influence of Hess & als. v. Rader & wife & als. as authority, upon the pretension that in making payment the purchaser acted, after due inquiry, on information furnished him'by the clerk of the court, that the commissioner had given the bond required by the decree. Some evidence was taken as to that matter on both sides, and is more or less conflicting. It is immaterial, however, in this case, whether such information was given or not, or whether, if given, -it induced the payment to the commissioner. The fact remains that no bond was given and therefore the commissioner had no authority to collect. There was a bond filed among the papers in the cause, but whatever the clerk may have said to the purchaser about it, it is certain that the bond was never approved and accepted by the clerk, and his refusal to accept it was endorsed upon it at the time it was tendered and filed. Whatever remedy, if any, the purchaser may have against the clerk, his payment to the commissioner was a payment in his own wrong, and he continues personally bound for so much of the purchase money collected by the commissioner as was not accounted for by him.

*The court is further of opinion, that the land purchased by the appellant under the decree of the court also continues bound for the purchase money collected and not accounted for by the commissioner, notwithstanding the deed of conveyance made by the commissioners. The title was retained by the decree ordering sale as a security for the payment of the purchase money, and the commissioners were not empowered by the decree to convey until payment was completed; and as no valid payment was ever made, the deed of the commissioners passed no valid title. None of the decrees in the cause subsequent to the decree made on the — day of June, 1871, by which the commissioners were appointed and authorized to make collections only on condition of first giving bond, dispensed either expressly or impliedly with the performance by the commissioners of this condition precedent to the exercise of the powers conferred. The 11th section of chapter 174, Code of 1873, relied on by the appellant in his answer to the rule against him, has no application to a case like this. The decree under which the appellant purchased has never been reversed or set aside, nor has there been any attempt to reverse it or set it aside. On the contrary the proceeding against him was to enforce the decree and compel him to complete his. purchase by payment of the purchase money remaining unpaid.

The court is further of opinion, that the complainant in the court below and the other parties in this cause were not, nor were any, nor was either of them, bound to resort to any remedy they may have had, either against the defaulting commissioner separately or against him and his sureties on the bond aforesaid filed in this cause, before proceeding to subject the land purchased by the appellant for the balance of purchase money not accounted for as aforesaid. The bond, as before stated, *was never approved and accepted as a bond authorized by the court, and it is recited in the decree complained of that the commissioner is insolvent, and such is doubtless the fact, or this controversy would never have arisen. But whether the commissioner be insolvent or not, the appellant is. himself in default; and as to those' entitled to the purchase money for which he is bound, he is the primary if not only debtor.

The court is of opinion, for the reasons stated, that there is no error in the decree of the circuit court of Fairfax county, from which an appeal has been allowed in this case, and that the same should be affirmed, with costs and’ damages.

Decree affirmed.  