
    A. H. BOYD and others v. WILLIAM J. MURRAY and others.
    Where a sheriff, under a ven. ex. having relation prior to a certain deed in trust, sold land which had been conveyed in such deed to secure creditors, and upon being indemnified allowed the trustee to retain the surplus beyond what the process in his hands called for; and before the return day other like writs, having similar relations, were placed in his hands upon which he returned, “To hand too late to sell;” Held that the creditors under the later writs had a right to join in a bill to subject such surplus to the satisfaction of their debts.
    Also, that the sheriff, having made such a return, could not be compelled hj a rule to bring in the money.
    The 5th section of the Ordinance of the Oonvention of I860 (Stay Law) does not affect writs of ven. ex.
    
    
      (Bmting v. Mieles, 2 Dev. & Bat. Eq. 180, Mcmson v. Shepherd, 4 Dev. 497, Oxley v. Mide, 3 Mur. 260, Mardre v. Helton, 1 Phil. 327, cited and approved ; Smith v. Spencer, 3 Ire. 256, cited and discussed.)
    Bill seeking to subject a fund, filed to Spring Term, 1867, oí tbe Court of Equity of Alamance, and at tbat term set for bearing upon bill and answér and transmitted to tbis court by consent.
    Tbe bill alleged tbat one Harden bad obtained judgment in 1861 against one Watson, and tbat execution was thereupon issued and immediately levied upon a certain tract of land belonging to said Watson and returned to tbe next term of tbe court; tbat no other process was taken out until 1866, when a ven. ex. was placed in tbe bands of tbe defendant Murray as sheriff of Alamance, and tbat be sold tbe land thereunder to tbe trustee for tbe price of $5,000; tbat before such process bad been placed in bis bands Watson bad conveyed tbe land in trust to secure certain creditors, who, with tbe trustee, were the other defendants, and also tbe said Murray, and tbat be took from tbe trustee and those secured (other than himself) a bond of indemnity and thereupon himself' advanced tbe money due to Harden under tbe process, and suffered the trustee to retain all the purchase-money; also that at various terms of the court in 1859, 1860 and 1861 the complainants had severally recovered judgments (in all for nearly $3,000) against said Watson, and that immediately thereafter executions had been levied upon the same land; that nothing further was done until after the above sale by the sheriff and before the return day of the process under which he had sold, when writs of ven. ex. upon each of those levies were placed in his hand, and that he returned them “To hand too late to sell.” The bill charged that the defendants had combined to defeat the complainants of their rights, and asked for an account of the surplus which was in the hands of the trustee, and for general relief.
    The joint answer of the defendants admitted in general the facts stated in the bill, alleging however that before any process in favor of the complainants had been placed in Murray’s hands, a deed had been made by him to the trustee as purchaser under the process oí Harden, and the surplus money accounted for to him; that the trustee on procuring the sheriff’s deed had resold; that the purchase money was not yet due, and that he submitted to hold it under the directions of the court.
    
      Phillips & Battle, for the complainants.
    The doubt suggested in Smith v. Spencer, 3 Ire. 261, as to the effect of the language of the Eev. Statutes upon the doctrines of that case disappears in considering what was the common law upon the subject of judgments in personal actions, after a year and a day. 1 Comyn Ex. 4; 2 Tidd 1000.
    A ven. ex. is not an “ execution ” within the words of the Eev. Code, c. 31, s. 109. It is not spoken of as such in elementary books enumerating writs of execution, (3 Bl. 414, 2d Saund. Eep. 68, n. 1,) and it issues strictly upon a return and not upon a judgment. See Tidd’s Prac. Forms p. 273. Compare Samuel v. Zachary, 3 Dev. 377 (unargued), with 
      Taylor v. Doe, 13 How. 287, Doe v. Heath, 7 Blackf. 154, Bheclcer v. Bond, 4 Wash. C. C. 6, Noe v. Bogers, 4 Ind. 117, 2 Saund. Rep. 72 m. (n).
    
      Graham, for the defendants.
   Pearson, C„ J.

The defendant Murray, who sold the land as sheriff on the 19i/i November, 1866, made return on the several writs of venditioni exponas sued out by the plaintiffs and which came to his hands on the 20th of November, 1866, “To hand too late to sell,” and allowed the defendant Boyd, who purchased the land at the price oí $5,000, after paying off the venditioni exponas under which it was sold, to retain the balance of the purchase money, to be applied to the discharge of certain debts set out in a deed of trust executed by Watson the debtor to defendant Boyd in July, 1866, taking a bond of indemnity. The bill seeks to follow this fund and have it applied to the discharge of the debts due the plaintiffs respectively, for which the writs of venditioni exponas had issued to complete levies made on writs of fieri facias in 1861, on the ground of the fraud and collusion between the sheriff and the other defendants in the misapplication of the fund, the sheriff being one of the creditors secured in the deed of trust and taking indemnity.

The defendants object, in the first place, that the plaintiffs have mistaken their remedy, which was by rule in a court of law to compel the sheriff to bring in the money.

This remedy is cut off by the return of the sheriff, “ To hand too late to sell,” which would be a full answer to the rule and drive the plaintiffs to their actions for a false return.

It is settled that when an officer misapplies the fund, it may be followed in a court of equity and subjected to the discharge of the demands to which it was properly applicable. Bunting v. Ricks, 2 Dev. & Bat. Eq. 130.

, It is objected, in the second place, the judgments on •which, the writs of venditioni exponas issued were dormant, and such writs ought not to have issued without notice to the defendant in the judgments. These writs were not void, and could only be avoided at the instance of the party against whom they issued; and the sheriff was bound to obey them. Dawson v. Shepard, 4 Dev. 497; Oxley v. Mizle, 3 Mur. 250. It is held in Smith v. Spencer, 3 Ire. 256, that notice to the debtor is not necessary. We are not called upon in this case to say whether that decision will be followed or not; for this is no application of the debtor to set aside the writs; and, at all events, there is nothing to defeat the lien created by the levy, by which the land was taken in custodia legis and set apart for the satisfaction of the judgments.

It is objected, in the third place, that under the ordinance of the Convention of 1866, 5th section, the writs of venditioni exponas were void and issued against law. That question is fully discussed (Mardre v. Felton) at this term; and it is held that the ordinance does not apply to writs of venditioni exponas, and is confined to the ordinary writs of execution when there has not been a levy.

The plaintiffs are entitled to the relief prayed for.

Per Curiam.

Decree for the plaintiffs.  