
    Decker v. Armstrong et al., Appellants.
    
    1. Process, Contradiction of Sheriff’s Eeturn Upon. The return of a sheriff upon mesne or final process is generally conclusive ■upon the parties to the suit. Plis return upon an execution cannot be collaterally assailed, and so far- as the particular cause is concerned, nothing can be alleged against the validity of the judgment . by the parties thereto which is.contradictory of the return ; nor. can any rights acquiréd.undér such-judgment be divested or disturbed by disproving tbe return of the officer either upon the writs of summons or the execution.
    2.--: execution. In an action by an execution debtor against the sheriff and his sureties for the value of property exempt from ■execution, levied upon and sold by the sheriff, the latter may contradict his return by showing that the property so levied upon and sold was, in fact, that of the plaintiff in the execution and was by mistake so levied upon and sold. Such contradiction cannot revive the debt extinguished by the sale of the property and the application of the proceeds to the credit of the execution debtor, nor can the debt thus extinguished ever be revived in any collateral proceeding against the debtor. The execution debtor will not be allowed to extinguish his debt by a sale of the execution creditor’» property and afterwards also recover the value of the property.
    
      Appeal from Franklin Circuit Court. — Hon. A. J. ■Seay, Judge.
    Reversed.
    
      Crews & Booth for appellant.
    That a sheriff’s return is, under many circumstances, and for many purposes conclusive, we admit, but the logic of the position taken by respondent and the trial court seems to be that such a return is of so cast-iron a nature that in this case, not only is the execution satisfied by the sale of property of execution creditor, but he is also made liable in damages to the execution .debtor for the sale of property in which such debtor had .no interest. Thus by the sale of his own property, the execution creditor loses the benefit of his judgment and becomes liable in damages for the value of his own property, seized and sold under an execution in his own favor. This is so monstrous that it seems strange that any court should have conceived such a notion of the character and effect of a sheriff’s return of an execution. And it is not law. Bigelow on Estoppel (3 Ed.) pp. 494-5, and note 1 to p. 495. The judgment, thereípre, skoi^djbe ■reversed.
    
      
      John R. Martin for respondent.
    The court committed no error in striking out that ■part of defendants’ answer which contradicted expressly the return of the officer. The return was conclusive upon both the plaintiff in execution and the officer. Freeman on Executions (1 Ed.) chap. 24, secs. 364-6, pp. .599-604; Phillips et al. v. Evans et al., 64 Mo. 17 ; Burger t et al. v. Borchert et at., 59 Mo. 80; Stewart et al. v. Stringer et al., 41 Mo. 400 ; Jeffries v. Wright, 51 Mo. ■215’. The defendants certainly could not be permitted' to show that the return of the officer as to the ownership ■of the pioperty’levied upon was false. The return shows that the property was levied upor^as the property of respondent, was sold as her property, and was purchased .as her property by an agent of appellant, Robinson. 'The petition alleges that the property was (prior to) the levy in possession of respondent, and was afterwards ■claimed by her as exempt from seizure, and this the answer does not deny. Nowhere in the proceeding is the property treated as belonging to any one but respondent, ‘by any of the parties to the suit, or by the officer, and mo claim is pretended to be made, adverse to her, until' appellants are called upon to respond in damages for their wrongful act, when they attempt to escape liability by setting up that all the time they had been proceeding" against their own property by mistake, whether of law ■or fact, we are not informed.
   Henky, C. .T.

The plaintiff, in her petition, alleges that she was the head of a family and owner of three hundred bushels of wheat and no other property, and that defendant, Armstrong, as sheriff of Franklin county, on an execution in favor of his co-defendant, Robinson, issued on a judgment in favor -of Robinson against, her, levied upon said'wheat, which was exempt from execution, and sold it to satisfy said execution, knowing that •she was the head of a family, and that she owned no •other-property.

The defendants answered, denying plaintiff ’ s ownership of the wheat, and averring that, when levied upon, if was the property of plaintiff Robinson, and by mistake of Robinson and his attorneys the sheriff was -directed to levy upon the same. On motion, the court struck out the answer. The cause was then tried and the evidence for plaintiff was the sheriff’s return on the -execution, to the effect that on the twelfth day of August, . 1880, he levied it upon the wheat in controversy, as the property of Mrs. Decker, the plaintiff, and on the thirtieth of August, 1880, sold it to one North for two hundred and sixty-four dollars, which, after deducting $15.80 -costs, was credited on the execution. There was, also, ■evidence to prove that the value of the wheat was two hundred and sixty-four dollars. Plaintiff obtained a judgment for two hundred and sixty-four dollars, from which defendants have appealed, and the only question for determination is whether, in this action, defendants-can deny the plaintiff’s ownership of the property in ■controversy.

That the return of a sheriff upon mesne or final process is conclusive upon the parties to the suit, as a general proposition, is a rule settled by the authorities. Freeman on Executions, sec. 364; Stewart v. Stringer, 41 Mo. 400 ; Jeffries v. Wright, 51 Mo. 215; Burgert v. Borchert, 59 Mo. 80; Phillips v. Evans, 64 Mo. 17. The return of a sheriff upon an execution cannot be collaterally assailed, but by this it is’meant that, so far as that particular cause is concerned, nothing can be alleged .against the- validity of the judgment, by the parties to the suit, which is contradictory of the return; nor can any rights acquired under such judgment be divested or ■disturbed by disproving the return of the officer, either upon, the writ of summons or the execution. There is, however, no public policy to be subserved by giving to such official acts any greater force and effect than this, while great injustice, as in this instance, might result from giving the principle a more extended application.

The proposed contradiction of the return in the case at bar will not affect any right of the defendant in that execution the plaintiff here acquired under the execution. It will not revive the debt against her, extinguished by the sale of the wheat in question, and the application of the proceeds to her credit; nor in any collateral proceeding can the debt thus extinguished ever be revived against her. By her demurrer to the answer she admits that the wheat was not hefs — admits that it was the property of the plaintiff in that execution, and yet invokes the doctrine of the conclusiveness of the sheriff’s return, not to protect her in any right she derived by virtue of the proceedings in that cause, but also to enable her, after having had her debt satisfied by the sale of her creditor’s property, to recover from him and the sheriff the value of that property. It seems to me that the statement of the proposition carries with it its own refutation, and such an application of a doctrine, salutary within its proper bounds, would work such manifest injustice that it cannot be that the law will allow it. Fuller v. Holden, A Mass. 498; Tyler v. Ulmer, 12 Mass. 167.

The judgment is reversed and the caq§e yeipsijided.  