
    *Gottleib Collins et al. v. Joel F. Skillen et al.
    1. A sheriff and his sureties are liable on his official bond for his failure to deliver to the proper parties, in accordance with the order of the court, notes taken during his term of office, for the purchase money of property sold on partition, although no demand therefor be made until after the expiration of his term of office.
    2. Where the sheriff actually converts such notes to his own use, during or after .the expiration of his term of office, the measure of damages, in an action on his bond for the conversion, is the value of the notes.
    3. The object of the statute in giving time for the payment of the purchase money is not to provide a mode of investment for the benefit of the parties to the partition, but to encourage bidders, and thus effect a better sale of the property; and the sheriff and his sureties are, therefore, bound for all the money he may return as received from the sale, though the amount may exceed what the purchaser was required by the terms of the sale to pay in hand.
    Error to the district court of Shelby county.
    The original action was instituted by the plaintiffs in error, in the court of common pleas, against Skillen and the other defendants as his sureties, on his official bond as sheriff of Shelby county, to recover for money and securities which he had received as sheriff, to which the plaintiffs were entitled, and for which he refused to account.
    The case was submitted to the court on the petition and an agreed statement, and, so far as material to the qu'stions raised in this court, the facts are substantially as follows :
    On the 10th of November, 1857, Skillen, having given bond in due form of law with his co-defendants as his sureties, and being in other respects qualified, entered upon his duties as sheriff, and continued in office until November 4, 1859, when he was succeeded by his duly qualified successor.
    On the 12th of October, 1857, John Saddler and wife, in right of the latter, commenced a suit in partition, in the court of common pleas of Shelby county, against the present plaintiffs as tenants in common, for the partition of certain lands situate in said county, and such proceedings were i*egularly had in the partition suit, that the court, on the 3d of December, 1857, ordered a sale of the premises of which partition was sought.
    The defendants in the suit in partition, during its pendency were, and at the time of the commencement of the present suit continued to be, non-residents of the county.
    *On the 18th of February, 1859, the sheriff, in pursuance of an order of sale to him directed, and having given due notice of the time and place of sale, sold the premises to one George Lead-man for seven hundred and one dollars, upon the following terms: one-third cash, one-third in one, and the residue in two years from the day of sale; the deferred payments to bear interest, and to be secured by mortgage on the premises.
    The sheriff’s report on the order of sale, bearing date of the day of sale, states that he had received four hundred and one dollars of the purchase money, being considerably over one-half of the price at which the land sold.
    On the 15th of March, 1859, the court having examined and approved the proceedings, confirmed the sale, ordered the sheriff to make to the purchaser a deed in fee simple for the premises, and, after paying the costs, to distribute the proceeds of sale to the several parties, according to their respective interests as defined by the order.
    On the 30th of April following, the sheriff executed and delivered to the purchaser a deed pf conveyance for the premises, and took from him notes payable to the parties, severally, for their respective shares of the three hundred dollars, the remainder of the purchase ■money not paid on the day of sale; also, a mortgage executed by the purchaser to the parties, on the premises, to secure the payment of the notes.
    Prior to the giving of the notes, viz., on the 15th of March, 1859, the purchaser had paid the sheriff, of the purchase money, one hundred and forty-one dollars, besides the four hundred and one dollars acknowedged in his report of the sale, of which no account was made in giving the notes.'
    After the sheriff’s term of office had expired, the plaintiffs demanded of him their notes, and their respective shares of the money. With this demand he neglected and refused to comply; the fact being that he had received, including the one hundred and forty-one dollars, full payment of the notes, and had surrendered them to the purchaser as satisfied. The receipt of the balance of the money and the surrender of the notes were after the official term of the sheriff had ceased.
    The defendants waived all objections to the plaintiffs uniting *in the suit, and it was admitted the defendant Skillen was insolvent.
    Upon this state of fact the plaintiffs claimed to recover their • share of the full amount of the purchase money.
    The defendants claimed to be liable only for the plaintiffs’ share of the one-third, required, by the terms of the sale, to be paid in cash at the time of sale.
    The court of common pleas being of opinion that .the plaintiffs were entitled to recover their proportion of the four hundred and one dollars, acknowledged by the sheriff to have been received, in his report on which the sale was confirmed, gave them judgment therefor.
    To reverse this judgment the plaintiffs filed a petition in error in the district court. The court affirmed the judgment, and they now seek, in this court, to have these judgments reversed.
    
      James Murray, for plaintiffs in error:
    The judgment of the court below, so far as it gave the plaintiffs the amount paid to the sheriff and returned by him on the order of sale, was correct.
    The sheriff and his sureties are liable on his official bond for al] the moneys or securities received by him as the proceeds of the sale on partition. S. & C. Stat. 897, sec. 10. The moneys and securities thus received, are required to be distributed by Mm to the parties entitled thereto.
    The matter of terms of sale, under the amendatory act of 1851 (S. & C. Stat. 901, sec. 24), is to some extent, at least, under the control of the court, and the credit thus directed to be given, was undoubtedly for the purpose of enabling the land to sell to better advantage, by giving the purchaser time within which to pay for the property, and not for the purpose of investing the proceeds. And whore the purchaser waives the credit, and pays to the sheriff the purchase money in whole or in part, he receives it in his official capacity; and his return acknowledging the receipt of the money, being approved by the court, and the money ordered to be distributed, the sheriff and his sureties are liable for his failure to do so. *The parties entitled to the money or securities can look alone to the sheriff and his sureties. Their -remedy against the land is gone, and also against the purchaser, in all cases where the purchaser has obtained the securities back from the sheriff, either rightfully or wrongfully. Goudy’s Lessee v. Shank, 8 Ohio, 415 ; Van Tassell v. Van Tassell, 21 Barb. 439; Gwynne on Sheriffs, 507; Campbell v. English, Wright, 119.
    
      Mathers & Cumins, for defendants in error :
    The plaintiffs are entitled to recover their share of the one-third of the purchase money which the sheriff had the right, under the order of sale, to receive in cash. 3 Bibb, 432 ; 7 B. Mon. 250.
    The sheriff had no right to receive, and the purchaser no right to pay, more than one-third down. S. & C. Stat. 901. For the excess paid to the sheriff, his sureties are not liable as for moneys collected under legal process. If liable at all, it is for neglect on the part of the sheriff to take proper security for the excess, and plaintiffs’ damages would bo whatever loss they might incur from such neglect to take security. The land itself is the primary security. The owners of the fund could not be compelled to receive the money until it became due, with interest, nor could their right to the mortgage security be taken away and transferred to the more uncertain personal security of the sheriff’s bondsmen ; a liability for which they never contracted. Webb v. Auspack, Bro. & Co., 3 Ohio St. 522
    The sheriff had no right to receive the money on the notes, and . the purchaser could not extinguish his debt or relieve himself from liability on the securities given, by paying the money to an unauthorized person. The sheriff was the holder of the notes and mortgage only as a trustee to distribute them to the parties entitled. Parsons Merc. Law, 101.
    The sheriff and his sureties are liable in nominal damages for the non-delivery .of the notes on demand. This is all they have sustained, because suit can be brought as if upon notes lost, the liability of the purchaser of the land still continuing.
   *White, J;

The statute provides that the official bond of a sheriff shall be conditioned for the faithful discharge of his duties ; and the bond, in the present case, is in conformity with the statute.

The first question is: Was the collection of the money due on the notes and their surrender by the sheriff, a breach of his official duty?

That he received them in his official capacity is clear. As sheriff he made the sale, and it was his duty to see that the purchaser complied with its terms. On his return the sale was confirmed; and, as a necessary consequence, he was ordered by the court to make to the purchaser a deed, and to distribute the proceeds of sale to the several parties entitled thereto. True, the notes were payable to the parties; but the notes, as well as the money, were delivered to him as the consideration for the premises sold, for the benefit of the parties, in lieu of the estate for which they had been divested by the sale. He thus became the custodian of the notes in his official capacity, and his liability as such would continue until he either delivered them to the proper parties, or was, in some other mode, relieved of his responsibility.

' Did his liability cease with his term of office ?

Certainly not. The duty of holding and properly disposing of the notes and money was an official duty devolved on him by law while in office, and, though his term ended, the duty continued until discharged. His subsequent unauthorized collection of the notes and the surrender of them to the maker, was a breach of this duty. It was the wrongful conversion of the securities to his own use, for which an action in the nature of trover might have been maintained against him separately, or for which he and his sureties may be sued on his bond.

The security furnished to the public by the bond is coextensive with the duties imposed by law upon the sheriff; and in addition to the personal responsibility of the officer, is the indemnity provided by law for the protection of the public against official misconduct. The bond is not designed to, and does not, furnish the measure of the officer’s official liability, but is an undertaking, in its nature collateral, that *the obligors will respond to the party injured, to the full amount of such liability as may be incurred by the principal. See King, Cary & Howe v. Nichols et al., decided at the present term.

The next question is as to the measure of damages.

The counsel of the defendants claim that the damages should be only nominal, for the reason that the plaintiffs, as the collection and surrender of the notes were unauthorized, could still resort to the maker for payment.

Upon ordinary principles it is no answer to a demand for damages, founded upon the unlawful conversion of property, that the plaintiff has the right to reclaim it from those to whom it has been wrongfully disposed of. Nor could the defendant, Skillen, in an action against him for the conversion of the notes, have mitigated the damages by the fact that the plaintiffs could still collect their debt from the maker of the notes.

The measure of damage in this respect in not different where he is sued on his own bond for the tortious conversion of property to his own use, and where, as in this case, such conversion constitutes a breach of the bond. Nor can the fact that some of the obligors are sureties be allowed to vary the rule; for the measure of damages arising from breaches of the bond is necessarily the same against all the obligors.

In trover, the measure of damages for the conversion of a chose in action, as a bill, note, bond, or other security for the payment of money, is the amount collectible thereon. Prima fade the measure of damages is the amount due on the security, the defendant being at liberty to reduce that valuation by evidence showing payment, insolvency of the maker, or any fact tending to invalidate the security. Sedg. on Damages, side, 488; 2 Greenl. Ev., secs. 276, 649; Mercer v. Jones, 3 Camp. 477; Romig’s Adm’r v. Romig, 2 Rawle, 241; O’Donoghue v. Corby, 22 Missouri, 394; Menkens v. Menkens et al., 23 Id. 252.

We see nothing in the present case to take it out of this rule.

The notes were the property of the plaintiffs, and worth their-*face; the defendant, Skillen, in violation of a duty devolved on him by virtue of his office, converted them to his own use; for-this conversion the plaintiffs have brought their action on this-bond; and, as between the parties to the suit, we see no reason why the plaintiffs should not recover full damages. The equities, if any, that may exist or arise between the sureties and the purchaser, we are not called on to consider.

As the judgment must be reversed, it is necessary to determine whether the defendants are liable for the four hundred and one dollars paid on the day of sale, as that question affects the amouni of the judgment to be rendered.

They claim to be liable only for the one-third of the purchase-money required by the terms of sale to bo paid in cash.

In the absence of an order of court requiring the sale to be for cash, one-third of the purchase money is payable on the day of sale, and the balance in two annual installments, with interest.

The object of the statute is not to provide a mode of investment for the benefit of the parties to the petition, but to encourage-bidders, and thus effect a better sale of the property. If the purchaser should elect, after the sale, to pay all the purchase money in-hand to the sheriff, and on report of the fact the court should confirm the sale, there can be no doubt that the sale would be valid,, and the sheriff and his sureties liable on his bond for the money. The fact that the property would have sold for more, or as' much,, for cash down as if sold on time, would have been a good cause for-ordering the sale to be made for cash in the first instance.

The opinion of the common pleas, allowing the plaintiffs to recover their shares of the money returned by the sheriff on the order of sale, was correct.

But for the reasons already stated the judgment of the district, court and of the court of common pleas will be reversed; and judgment may be entered, in this court, in favor of the plaintiffs, in accordance with this opinion.

Scott, C. J., and Day, Welch, and Brinkerhoee, JJ., concurred. 
      
      Ante 80.
     