
    Faris, &c. vs. Banton.
    Error to the Lincoln Circuit; John L. Bridges, Judge..
    Execution, sales under. Officers*
    
    Mowon-
    Cased.
   Judge Buckner,

delivered the opinion of the court.

Buford, as executor of the last will and' testament of William Banton, recovered,judgment in the circuit court, for three thousand seven hundred and twenty six dollars, twelve and a half cents, and costs, against William T. Banton, John Banton, and' William Faris, On an obligation executed by them, to • the testator of the plaintiff; Buford;.in which William T. Banton was principal, and'the other two obligors were his sureties. An execution of fieri facias issued on the judgment, was placedin the hands of the sheriff of Lincon county, under which, a tract of land of one hundred and thirty acres, was levied upon, as the property of John Banton, and sold. William Hamilton,, being the highest bidder, became the purchaser; and teceived therefor, the sheriff’s deed..

On the motion of John Banton, the circuit court quashed the sale, and bond executed by Hamilton and Faris his surety, as the price of the land. To reverse that judgment, the plaintiffs in error, who were the defendants in the motion, prosecute this writ of error, with supersedeas. The evidence was spread upon the record. By whieh it appears, that after the execution had been issued, John Banton and Faris, looking upon it as probable that very little, if any part of the amount, could be made out of the property of their principal, entered into an agreement, that Faris should pay one thousand dollars towards the discharge of the execution, estimating as a part thereof, nine hundred and twenty-five dollars, which he had previously paid; and that as John Banton owed William T. Banton, one thousand dollars, as the price of a horse, purchased from him, he should pay two thousand dollars towards the discharge of said .execution. If, after those payments, the remainder could not he made out of the property of. their principal, each one of the sureties agreed to pay equal portions of the amount undischarged. They also agreed to meet at a place appointed for the purpose, replevy the debt, and consummate the stipulated arrangement. This,, however, was not done, and the sheriff who had the execution in hand, proceeded to levy it. it was credited by Buford, with the nine hundred- and twenty-five dollars, paid by Faris. A negro boy,-levied on, as the property of Faris, was sold for the sum of four hundred and fifty two dollars and sixty-five rents. Personal property levied on, as belonging to John Banton, was sold for one thousand nine hundred and seven dollars and eighty one cents. The land aforesaid, was sold for five hundred and ten dollars and fifty cents; the sales having been made upon a credit of two years. It appears that Faris had considerable personal property, in the county where the land sold was situated, which was legally subject to be levied on, in virtue of said execution; but, that the sheriff levied on the land, at the instance and request of Faris; and that 'Hamilton bought (he land for Faris’ benefit, John Banton forbidding the sale. The errors assigned, are in general terms, that the circuit court erred in quashing the sale, and sale-bond, as stated in the bill of exceptions.

By the notice, on which the motion in the circuit court was founded, we are furnished with the ground assumed by John Banton, and, on which that court founded its judgment, quashing the sale, &c. It is, that at the time the levy was made, Faris had persona] property in the county of Lincoln, sufficient to satisfy said execution, and which was liable to it.

Whether, under such notice, John Banton had a right to rely on the additional grounds; that Faris requested the sheriff to levy the execution on the land; and that Hamilton bought it for Fairs’ benefit, need not now be inquired into, as he was permitted to dosor without objection. The question presented, is, was the judgment of the court correct, under the proof exhibited? That by the act subjecting lands to execution?, it is made the uutv of the sheriff to make the amount of the ex- cution in hi« huui|s. first out of the personal estate of the defendant, therein, if he can; if no*, out of the slaves; and, if there he none, or not sufficient, to raise the amount, that (hen the land is to be sold, is true. It is abo, ids dim to advertise the time and place of sale, as required by law; and for a violation of his dut\, or either of thia-e duties, he is responsible to the defendant, in the execution, for the injury sustained.

Tin- la..» winch pre-aoi ¡tv *h.- or-dei in winch the differ >nt spoon i of pro-cer! •• , ni a de-le-i'i mi i- an ex ecu > -a ‘hiillb- Mitd, irnv -Il is -ho'e wlui h i«qn'i'& th- 'ime -.nd place o! nilp t o be inlvF rlis-<-d, are merely directory, and du not invalidate a míe which is made in violation of them, unless the purchaser participated in the illegality-

Officer,hold-several'dofen-isnoi sónalproper-" ty n-all of [1hem¡/)°í1ore 0j'either-

The sale, however, would not he therein invalidated, unless the purchaser participated in the illegality. The clauses imposing those duties, are merely direr tory to the officer. Vide the case of Hayden, &c. vs. Dunlap, III Bibb, 216; and Beeler’ heirs, vs. Bullitt’s heirs, III Mar. 280. If, in a case, whore the plaintiff in.the execution had become the purchasei of the land, he had by his directions or management, been instrumental, in procuring the officer to disregard any of his duties relating to the sale, calculated to operate injuriously to the debtor; or has induced him to make the sale, in any respect, unfairly and fraudulently, it ought, no doubt, tobe quashed; Mills vs Rogers, II Litt’s. Rep. 217. The question, therefore, on which this case must turn, is this; was the omission, on the part of the sheriff, to levy the execution on the personal property of Paris; and his levying it on, and selling the land of John Banton, at the request of Faris; and it having been purchased by Hamilton, for Faris’ benefit, sufficient ground to justify thq. judgment of the circuit court?

What the personal properly consisted of, which Faris owued, in the county of Lincoln; whether the sheriff could have got it into his po-session to levy on, the statement of the letdimony, in the bill of exceptions, leaves us to conjecture. But waiving that consideration, we are not aware of any case, in which it has been decided, that tinder an execution against several defendants, it is the duty of the officer, to haust the personal property of all the defendants, before the land of either can be legally sold, under it. There is certainly, no principle of reason or justice, which requires it. The sheriff has a right to do so, ^ he chooses, unless land be voluntarily given up, for the purpose. He may make fhe whole amount due, by a sale of the property of any one defendant; or, he may compel all to contribute equal portions, or in case of failure, may sell the property of the delinquent. He has no authority to sell the land of any defendant, unless he consent to it, while he can levy on a sufficiency o,f personal property belonging to such defendant; but, to compel him, where there are two or more defendants, to make the whole amount of the execution out of the personal property of one defendant, who pays his proportion of the debt, before he can be allowed to sell the land of a co-defendant, whose estate consists entirely of land, would be unreasonable. The letter of the statute does not require it, nor shall we. give such an exposition of it, as will produce such unjust consequences.

Where judgment is recovered against several defendants, for a debt, towards the payment of which all are injustice bound to contribute equal portions, it having been contracted for their joint benefit; or where all are sureties, neither can reasonably complain, that he has been compelled so to contribute. The sheriff, it is true, is under no legal obligations to make the amount in equal portions out of fhe property of each, because each is bound for the whole; and the officer is often without any satisfactory information on tiie subject of the circumstances under which, the debt was contracted. He may not know, whether it is just for each one to pay a part, or whether one should pay all. But, it frequently happens, that he is; correctly informed on those points; and, where he has such information, it would be but proper for him to re~ gard them, and act accordingly, so far as he can do it, without inconvenience and consistently with the rights of the parties.

Should a judgment be recovered against A as principal, and B as surety, the whole of A’s property consisting of lands, and the whole of his suritysof chattels, the legislature can not have intended to make it the duty of the officer to sell the last cent of B’s personal property which may be subject to execution, leaving the land of his principal untouched.' The provisions of the statute, in relation to the order in which the property of a debtor under execution ¡¿hall be sold, was intended to protect him in the enjoyment of a description of property, to which, being more permanent, the law attaches greater consequence and value; and therefore, has made it the duty of the officer to sell his personal property first; but could not have intended to produce the oppression and injustice, to which the interpretation given to the act, by the circuit court, obviously leads.

Petition.

In every aspect in which the caso can bn rationally presented, we are of opinion, that it vvas improper to sustain the motion.

The judgment of the circuit court, quashing (he sale and salebond, must he reversed, with costs, and the cause remanded, to that- court, with directions to dismiss the motion with costs.

On the following petition filed by the counsel of defen* ■ dants in error, a re-hearing was granted»

Counsel who were not previously engaged in (his Cause, but, who would have appeared, had not the names of the parties have been mistaken, beg leave, respectfully, to present to the court the following considerations, fora re-hearing, in this cause.

As the court has said, a purchaser or parly under execution, is not bound by the irregularities of a sheriff in doing execution, where such purchaser or party tvas not privy thereto. This is a position that cannot be denied, and one we should be sorry to see shaken.

On the contrary, if tire purchaser or party has been instrumental in causing, or has participated in the illegalities of the sheriff, that he should be bound by them, and lose his purchase by reason thereof, is a position equally clear.

That Fans not only knew of, but caused the illegalities of the sheriff here, (if illegality it be) and availed himself of the opportunity to acquire the land, is a fact that cannot be controverted. The question then must rest on the enquiry, whether the sheriff acted illegally in selling the land, while there was other estate, sufficient, subject to discharge the execution, within his grasp. This question must be settled by the-several acts of assembly, regulating this matter,

Petition.

Here we would previously observe, that lands'not boina; liahlo by common law, and only subjected by sin (.me, such statute mint ho substantially pursued. The law was loader of the rights of home; that is not to be disturbed, if there be other modes of satisfying the «execution. Permitting our citizens to have an al-lodial igh< in I lie spil, not subject to be divested, even bv the government itself, is a regulation, calculated much to strengthen our república;) form of government. if is no wonder then,-that (he legislature hesitated to strip iho citizen of his domicil. They refused ro do .a>, ¡ill all otsx-r expedients failed, and all oth-■cr resoujces were exhausted.

Tin: act of assembly, which first subjected lands to the payment of debts, declares, that the officer “shall and may make the debt or damages, and costs recovered, first of the goods and chattels, exclusive of slaves; and if there be no such goods and challéis, or not sufficient found in his bailiwick, then of ike slaves; and if there he. none., or not sufficient found in his bailiwick, lastly, of the' lands, tenements, and hereditaments in possession, reversion or remainder; or so much thereof, in one or more entire parcels, as shall be sufficient, and such part as the owner shall direct, if he thinks Draper.”

it is easy to observe the great caution here taken, to placo the land on the back ground, and have it last, ft is not postponed to the goods, chattels and slaves of the defendants, dr any one defendant, on which the officer had begun to act; hut, to all goods and chattels, not of the defendant alone, as the court seems to suppose, for no defendant is named, but to all goods, chattels. and slaves, subject to execution. What limit can be fixed to this expression, except that of all goods and chattels subject to (lie-execution. That, and that only is the limitation, l! other goods, chattels, and slaves, are without the officer’s power, then he may take land, and not before.

But, this is not the only expression used by the legislature. In the 7th section ot an act, of 1798, I Dig. S.L. 514, it is declared: that "Land shall not he. taken by execution, for debt oi damages, if there be slaves, or personal property, sufficient to pay the debtor dama* ge5, unless the defendant should request that Iris land should he taken, instead of the other property.”

1 lort'

Now, the word defendant here used, must be con■sidered as including all defendants, and the design of the clause is, to require the consent of'a defendant to take his own land; and without such assent, land m: st be postponed. But,’in the case we are considering, one defendant requires the sheriff to falce the land of another, against his consent, when that defendant’s personal estate was the legitimate fund.

The court has admitted, that the sheriff, acting contrary to his instructions, might give the party injured a rightof action. This is true; hut, the party injured, has frequently his election to recover what is lost, or sue the sheriff. If he recovers what is lost, then the loser has his action against the sheriff. The court seems to say, that the difficulty lies, in injuring thé plaintiff in the execution, Buford, who did not participate in the wrongs of the sheriff. To this, it is replied, that if Buford should be ultimately injured, he has his action against the sheriff. For, as the officer is liable to whichsoever is injured, it will often happen that the rightof action against him will be changed, and go to the hands of the person ultimately injured. Suppose him to act grievously illegal in a sale, so much so, that his oppressive acts in making the sale, could not be sustained for a moment; the plaintiff does not participate, but gets his money, and the defendant quashes either the execution, or the return and sale, and the plaintiff loses. He then has his action against the sheriff.

Besides, Faris was the person who committed or directed the act, and was the purchaser; and the act of assembly, regulating such motions, expressly requires a sale to be set aside for improprieties between either plaintiff or sheriff, or defendant and sheriff, or between the purchaser and sheriff, even though both plaintiff and defendant did not participate; seel Dig. S.L. 516. After this act, it is wholly immaterial, whether the defendant or plaintiff here took any part. The acts of the purchaser alone will vitiate, and the plaintiff be left to his remedy against She sheriff. See Blight vs. Tobin; a late case in Mss.

Petition.

The court seems to remark, that there might be some difficulty in finding the personal property of Faris. The reply to this is, there was no doubt of its being accessible, because it is the sheriff himself, who acted under the execution, who proves that there was such personal estate. He, of course, knew of it, and he puts his acts upon the law of the case, and the direction of Faris.

It is then insisted, that the act is positive, in requiring the personal estate, hable to the execution, to be sold, and the right to apportion, is not with the sheriff. To permita sheriffin acting between defendants, to unite with one, to the prejudice of the other, and let the one in combination become the purchaser, will be the inlet to many frauds. It may be said, that John Banton, whose land is sold, was liable to pay the rest -of the execution, and if Faris had paid it, John Banton would have been liable to contribute. This is assuming those facts collaterally on the motion, when no issue is formed to try the way in which accounts stood between the parties. If Faris was put to his suit for contribution, John Banton might discount the demand against personal claims of his own; which he could not-do in this motion.

It is relied on in the brief, that the same matter was tried in ejectment, and therefore, there could not be a second trial. To this, the following answer is submitted:

1. The verdict and judgment in ejectment, being for plaintiff, even under the late statute', is no bar or evidence in another ejectment, much less in a proceeding which tries title.

2. There is no issue in the ejectment made up, nor any defendants entered thereto.

3. Tf it was a new question, the right to try in eject* ment such irregularities in a sale, is questionable. It would be best in every case, where the sheriff had authority to sell, to decide the title with the sale, and leave the party to his remedy, by motion, within the year, or afterwards, to his remedy in equity which still exists'independent of <he motion. It cannot be reasonably' doubted, that many cases will happen under our decisions, where the legal title goes with the sale, and where the chancellor will interpose to recover it back, or a motion would lie to annul it. This is a case of that character. What is done in the ment, concludes nothing here.

If the doctrine of the court is correct, that the sheriff can go into the question of distribution, and vary his right, under circumstances, to levy accordingly, many matters'must be noticed by him which he cannot notice. He must travel behind the judgment, and ascertain who is principal, who surety, and whether all arejoint debtors, or whether one is equitably bound to pay the whole. He would, also, if he is to levy ratea-bly, have to begin frequently with land, instead of having land last. If Faris must lose his personal estate, to pay up-this whole debt,- before John Banton’s land-can be taken, letitbe remembered, that he agreed to do so when he entered into the contract with him. He was then bound to know, that the lands of his co-surety was the last fund which could be subjected.

The legislature evidently intended by “defendant” the party, as is evident from the interchange, who are of the word “party.” 1 Dig. 513. 3 Sec. the words “party convict” is used. 6ih Sec. the word “party” is used just before the direction, that lands shall be last in 7th Sec. In'that section, the word debtor is-used, which means all the debtors.

Another act says, the defendant may replevy. This has been so construed, that' all-the defendants must join.

Wherefore, a re-hearing is respectfully solicited*

Opinion after re-hearing..

Judge Underwood

delivered the opinion of the Court.

June 2b,

The 3d section of the act of 1798, subjecting lands to the payment of debts, by sales under-writs of fieri facias, directs that the officer shall make the debt, &c. in the manner hereinafter prescribed, viz: “first of the goods and chattels,exclusive of slaves; and if there be no such goods and chattels, or not sufficient found in his bailiwick, then of the slaves; and if there be none, or not sufficient found in his bailiwick, lastly of the lands, tenements, and hereditaments in possession, reversion or remainder, or so much thereof, in one or more entire parcels, as shall be sufficient^ and such part as the owner shall direct, if he thinks proper.” The seventh section of the same act de--clares, that “Land shall'not be taken by execution’, for debt or damages, if theFe be slaves or personal property sufficient to pay the debt or damages, unless the defendant should request, that his land should be taken instead of the other property.” These sections are susceptible of two interpretations, only, applicable to the facts of the present case, '[’he first, and that on which Banton relies, is, that when goods a.nd chattels, slaves and land, are mentioned in the act, as a fund out of which debts may be made by execution, the legislature intended to include the entire estates, real and personal, of all the defendants in the execution, and to have the land of no one sold, if goods and chattels, or slaves of any other could be found in the bailiwick, sufficient to make the debt. The other interpretation, and that which Faris contends foe, is, that the act only intended to protect land, in preference to slaves, and slaves in preference to goods and chattels, where each of these species of property was found to belong to the same individual who might -be a defendant with others in the execution. My mind adopts the last construction, and in addition to the reasons already assigned in the opinion delivered, I think the word owner, as used in the third' section, and the word defendant, as used in the seventh section, cleat ly indicate, that it was only designed by the- legislature, to prescribe rules by which the land owned by a defendant was to be protected in preference to the slaves- or goods and chattels of the same defendant, and not in preference to the slaves or goods and chattels of other defendants. Suppose A and B are execution defendants; A hasnothkig but land andBnothing but slaves, ff A owned all the property, and B none, then A under the statute, has an option, to surrender the land, and protect his slaves. Now, why may not B insist, with as much propriety, upon the exercise of the same option, to protect his slaves, by surrendering A’s land? The seventh section shews conclusively, that it is the individual owner of slaves alone who can protect them by surrendering his own land, and as this rule is confined to the same defendant who owns land and slaves both, I cannot believe the legislature ever intended to have the alavés of one defendant sold, in preference to the land of another defendant, who has nothing but land. It is clear to me, that all the rules prescribed, were intended to apply to the same person as a dant, and that it never was designed to make that defendant who held nothing but personal estate pay all the debt, in order to save the' land of a co-defendant who had no other pioperty. A single case will shew the absurdity of such a construction as will save lands by selling the personalty in the maimer contended for by Banton. A is the principal debtor in a replevin bond, and B his surety. A has nothing but land, and B nothing but slaves. B’s slaves are sold according to-the construction contended for. He then, by mo.tion, obtains judgment against his principal A, whose land then has to go under the hammer in order to pay B. What good can result from a construction of the statute,'which will lead to such consequences? None. On the contrary, much evil. A’s house, which counsel so urgently plead for, is at last sold, and that too, after B’s slaves may have been sacrificed; and by the delay, if A acts fraudulently, B may be unable to procure an indemnity for his losses.

Kincaid and Crittenden, for plaintiffs; Owsley, An dersan, Mills and Brown, for defendants.

The more I have examined the case, the more reasons fíave I found for adhering to the opinion.

Note — Chief Justice Roix-rtson did-not sit in this case.  