
    The State of South Carolina vs. A. W. Yongue.
    Judgment creditors having the right to postpone a re-sale of land, where they do so, the sheriff is in no default, and is not liable to the defendant in execution for damages sustained by reason of the postponement.
    Where loss accrues by reason of a sheriif’s failure to make such re-sale of land as will bind the first purchaser, the administrators of the defendant in execution have no right of action against the sheriff to recover for such loss, where it appears that the defendant in execution had before the first sale conveyed away the land, and at the re-sale the only judgment audf.fa. older than the conveyance had been satisfied.
    BEFORE WHITNER, J., AT FAIRFIELD, SPRING TERM, 1857.
    The case made by the plaintiff was the same as that made on the first trial, and was now heard on the Eeporter’s condensed statement of facts contained in 9 Eich. 443, together with the evidence furnished by the defence. The statement is as follows:
    “ Debt on the official bond of the defendant, late sheriff of Fairfield, to recover for the benefit of the administrators of Thomas Lumpkin, deceased, the difference between the price bid at the sale and that bid at the re-sale of a tract of land, which the defendant had levied on and sold, as the property of Thomas Lumpkin.
    “ On the 1st of February, 1843, Troy Lumpkin recovered and entered judgment against Thomas Lumpkin, for five hundred and fifty-five dollars and seventy-two cents, besides interest and costs. The principal part of this judgment was paid by the sheriff to the creditor, in April and May, 1843, and the balance, sixty-six dollars, was paid by him in May, 1844. In November, 1843, other judgments to a considerable amount — one being in tbe name of J. B. Betts, and another in tbe name of S. B. Johnson — were recovered against Thomas Lumpkin. These judgments were all paid off by tbe defendant, Yongue, before tbe re-sale on tbe 3d of Eebruary, 1845, hereinafter mentioned, except tbe judgment of S. B. Johnston, which was satisfied by that re-sale.
    “Under tbe executions of Troy Lumpkin and John B, Betts, the defendant, in January, 1844, levied upon a tract of land as tbe property of Thomas Lumpkin, and on tbe 5th of Eebruary, 1844, offered it for sale, when it was bid off .by James Catbcart for two thousand six hundred and fifty dollars. One W. L. Pickett was in some way interested in the sale, and in April, 1844, he paid seven hundred dollars, on account of tbe bid. Tbe balance of tbe purchase money not being paid, the defendant advertised the land for re-sale in November, 1844, at the risk of the former purchaser. It was accordingly offered for sale on the sale day of'that month, by Cockrell, the successor of defendant, who bad taken charge of the office a few days before, and was bid off by W. L. Pickett, for two thousand dollars. Pickett also failed to comply, and the land wa§ again advertised for sale at the risk of the former purchaser, — the sale to take place in Eebruary, 1845. It was then sold to one Mobley for eight hundred and thirty-five dollars, who paid the purchase money and received a deed of conveyance from Cockrell; one Abraham E. Lump-kin, a son of Thomas Lumpkin was present at the first sale, consenting to and urging it on.
    “ Such was the case made by the plaintiff.”
    Eor the defence, it appeared, that on the 2d March, 1843, Thomas Lumpkin conveyed the land, which the sheriff had sold, to his son, Abraham E. Lumpkin, for the consideration, as expressed in the deed, of five thousand dollars; that A. E. Lumpkin desired the land sold by the sheriff and pointed it out to him for levy; that the judgment creditors of Thomas Lumpkin agreed, before the sale in Eebruary, 1844, to give time to tbe purchaser, but bow long, tbe witnesses could not say — one witness, Mr. McDowell, was sure “it was beyond tbe first sale day after tbe sale that it was understood W. L. Pickett was to be tbe purchaser at a sum not less than two thousand six hundred dollars; and that immediately after tbe sale, Catbcart transferred his bid to Pickett with tbe knowledge and consent of tbe defendant, who made a memorandum to that effect. It further appeared that the execution of S. B. Johnston was under stay until the 1st November, 1844.
    When tbe plaintiff closed his case a motion was made for a non-suit which bis Honor overruled.
    The verdict was for the plaintiff, against the charge of bis Honor, who held, that no breach of defendant’s bond bad been shown, resulting in injury to Thomas Lumpkin.
    The defendant appealed, and now moved this Court for a non-suit. 1. Because the plaintiffs, as administrators, were not entitled to maintain the action; and 2. Because the damage resulted from the act of Sheriff Cockrell in reselling: and, failing in that motion, then he moved for a new trial on numerous grounds, resting mainly on the positions, that the only judgment, that of Troy Lumpkin, which bound the land at the date of the conveyance to A. ■ E. Lumpkin, having been satisfied before the re-sales in November, 1844, and February, 1845, the purchaser at the last re-sale acquired no title, and no injury therefore resulted from the same which could be charged to the defendant, or of which Thomas Lumpkin or his personal representatives could complain; and that the postponement of the sale by the judgment creditors, who gave time to the purchaser, excused the defendant, and exonerated him from all liabilty.
    
      Buchanan, Boyhton, for appellant.
    
      McAlily, contra.
   Tbe opinión of tbe Court was delivered by

Clover, J.

Tbe action is brought by tbe State of South Carolina, for tbe benefit of tbe administrator and adminis-tratrix of Thomas Lumpkin, against tbe defendant, late sheriff of Fairfield District, on bis official bond, to recover tbe difference between tbe price bid at a sale and a re-sale of a tract of land, levied upon and sold as tbe property of Thomas ‘Lumpkin, in bis lifetime. •

Tbe statement copied into tbe report from 9 Eicb. 443, with tbe additional evidence introduced on tbe second trial, furnishes all tbe important facts in tbe case, and upon which a verdict was rendered for tbe plaintiff. Many questions have been submitted for consideration, growing out of tbe defendant’s grounds of appeal; but tbe decision of tbe case must depend upon tbe enquiry, Has any breach of tbe defendant’s official bond been established, by which- Thomas Lumpkin sustained damage.

It is argued, that tbe defendant, as sheriff, and by virtue of a fi. fa. against Thomas Lumpkin, levied upon and sold a tract of land as bis property, and tbe terms of tbe sale not having been complied with, be failed to re-sell at tbe risk of tbe defaulting purchaser, either on that or on tbe next succeeding sale day, as tbe Act of 1839 (11 Stat. 26, Sec. 58,) directs, and that be is liable for tbe damages which have resulted from this neglect. In excuse of this alleged default,

• tbe defendant proved, that tbe judgment creditors of Thomas Lumpkin agreed, before tbe sale in February, 1844, to give time to tbe purchaser at sheriff’s sale; it being understood that W. L. Pickett was to be tbe purchaser, at - not less than twenty-six hundred dollars: and Mr. M’Dowell is certain that tbe credit allowed to tbe purchaser extended beyond tbe ■sale day succeeding tbe sale. A postponement of tbe re-sale of tbe land was, therefore, at tbe instance of tbe judgment creditors, and was justified by tbe provisions of tbe Act of 1839. W. L. Pickett having failed to comply,-the land was advertised by tbe defendant for re-sale in November, 1844, at tbe risk of tbe defaulting purchaser; but as bis official term bad expired a few days before, Cockrell, bis successor in office, re-sold tbe land, when W. L. Pickett becoming tbe purchaser at two thousand dollars, and not complying, Cock-rell again re sold in February, 1845, to Mobley, for eight hundred and thirty-five dollars, who complied with tbe terms of sale and received titles. From these subsequent proceedings, if irregular, what liability has tbe defendant incurred? If tbe judgment creditors extended tbe time for a re-sale, be did not violate tbe law by tbe delay; and tbe two re-sales were conducted by bis successor in office, Cockrell. But if by bis default, tbe alleged breach of defendant’s bond bad been established, can tbe legal representatives of Thomas Lumpkin recover? On tbe 2d March, 1843, and before a sale by tbe sheriff, Thomas Lumpkin, in consideration of five thousand dollars, conveyed this land in fee to A. F. Lumpkin, who held it subject to no other lien except a judgment in favor of Troy Lumpkin, which was fully satisfied on tbe 1st May, 1844, and therefore long before tbe first re-sale. What title or interest bad Thomas Lumpkin in tbe land after be bad conveyed to A. F. Lumpkin? Tbe satisfaction of tbe only judgment which bound it before any title was made to Mobley, would seem to protect him against any damages for a breach of bis warranty, and it may admit of grave doubt, if tbe re-sale and purchase by Mobley have divested tbe title of A. F. Lumpkin. We do not, however, propose to investigate or decide upon tbe rights of persons not parties to tbe suit, nor does tbe occasion require us to ascertain tbe liability of any other than tbe defendant. As all tbe judgments against Thomas Lumpkin were satisfied by tbe defendant before November, 1844, except tbe one in favor of Johnston, which was paid from tbe proceeds of tbe re-sale to Mobley, tbe rights of creditors are not before tbe Court.

Tbe proof in this case bas not established tbe legal liability of tbe defendant, and as a verdict for tbe plaintiff would be without evidence to support it, tbe defendant’s motion for a non-suit is granted.

Motion granted.

O’Neall, WhitNee, and Muneo, JJ., concurred.

Motion granted.  