
    Orlando Davis vs. Samuel N. Pryor.
    A sheriff who has sold real estate by virtue of his office, is not bound to make a deed to the purchaser, until all the purchase-money is paid.
    Executions in favor of the various officers of the circuit court of Tippah county, amounting to about $ 130, having been issued for costs against the Mississippi Union Bank, having come to the hands of the sheriff of that county, were levied on real estate of the bank ; the sheriff sold the same for the sum of one thousand dollars to D. who offered the sheriff the amount due the officers of court, in specie, and tendered him the residue of his bid in notes of the bank, and demanded a deed to the property ; held, that the sheriff had a right to demand gold and silver for the whole amount of the bid, and that D. was therefore not entitled to a deed from him.
    Whether a mandamus is the appropriate remedy to compel a sheriff to make a deed to property which he has sold as sheriff. Quiere ?
    In error from the Tippah circuit court; Hon. Stephen Adams, judge.
    Orlando Davis applied for a rule against Samuel N. Pryor, the sheriff of the county, to show cause why a mandamus should not issue against him to compel him to make title to certain real estate, bought at his sheriff’s sale by Davis, as the property of the Mississippi Union Bank. Davis answered the rule and showed for cause, that sundry executions from the circuit courts of Pontotoc and Tishemingo counties, against the Mississippi Union Bank, for costs due the officers of said courts, in all amounting to the sum of $ 130,92§, were placed in his hands as sheriff of Tippah county; that heulevied the same on a house and lot in Ripley, as the property of the bank. On the 6th of January, 1845, it was offered for sale, and Davis became the purchaser for $1000, and thereupon tendered to the sheriff the whole amount of the several executions in silver, and the remainder of the bid in the notes of the bank, and demanded a deed, which the sheriff refused unless he would pay the whole bid of $1000 in specie; which not being done he re-advertised and sold the property to some other persons,' and made a deed to them for the same, and they were then in possession. The court below, on this answer overruled the motion, dismissed the cause, and discharged the defendant. The plaintiff prosecutes this writ of error.
    
      W. Yerger, for plaintiff in error.
    The return of the sheriff to the mandamus, is conclusive, and by that, this case must be decided. I am told that the circuit judge thought the plaintiff was entitled to relief, but that he would have to seek it through the medium of a court of equity. In this the circuit judge certainly erred, as I shall proceed presently to show.
    Our law provides that whenever a sale is made under an execution, and the amount of the sales shall exceed the debt, nr damages, interest and cost for which the execution issued, the sheriff shall pay such excess or surplus to the debtor, &c. H. & H. Dig. 633.
    The surplus over and above the amount of the executions in Pryor’s hands was the property of the bank, or a debt due from Davis to the bank, and the question then arises,' whether or not Davis had a right to pay that surplus in the notes or issues of the bank. By 2d section of act 1840, ch. 2, p. 21, it is enacted that “ all banks in this state, shall at all times receive their respective notes at par in liquidation of their bills receivable, and all other claims due them.” This statute settles the right of Davis to pay the surplus in the notes of the bank.
    Upon this tender made by Davis in this case, it then became the duty of the sheriff to make him the deed.
    Was the mandamus the proper remedy? A mandamus lies . where there is no other remedy at law, and it is no objection to an application for it, that the party had a remedy by application to a court of equity. 3 Term R. 346; 10 Wend. 293. In this case, however, Davis had no remedy in equity. He was entitled to a deed, vesting in him the legal title, and it was the duty of the sheriff to have made him the deed.
    A mandamus is the appropriate remedy to compel all ministerial officers to do what by law it is their duty to do. 5 Comyn’s Dig. tit. Mandamus, p. 33, and cases there cited; 1 Cranch, 137; 14 Johns. R. 325. 1 Cow. R. 62, 501, is directly in point, and was a case exactly like the present. The form of procedure in this case was regular, and precisely that adopted in Marbury v. Madison, 1 Cranch, 137. To multiply authorities on so plain a point, would be deemed an insult to the understanding of the court.
    An inspection of the return of the sheriff in this case will establish the plaintiff’s right. None of the reasons assigned by him constitute a valid excuse for a failure upon his part to do that, which by law it was his duty to do.
    
      D. C. Glenn, for defendant in error.
    1. The law requiring banks to receive their own paper in discharge of their debts, does not apply. Here was no debt to the bank. It was only a sale of property of the bank, and I have yet to discover the law, authorizing purchasers to pay for the same in bank paper. It may be said that the surplus of the bid beyond a sufficiency to discharge the executions was a debt to the bank. If so, it was not such a debt as was contemplated by the legislature in the act of 1840. It is not a “bill receivable,” and the clause “ other claims due them,” refers to moneyed transactions, such as checks, bills of exchange, &c., where parties had become indebted to the bank in its banking character. In this case the execution was not in favor of the bank, but another. The purchaser receives valuable property, and is bound to pay a valuable price, which will go to the bank, its creditors, or whoever may be entitled to it. A different view would render the property of a broken bank as worthless as its paper.
    2. Mandamus is not the proper remedy, admitting the party to be injured. It is called a high prerogative writ, which issues in all cases where parties have a right, and no means of enforcing it. 5 Binney, 87, It will never be granted, except where there is no other remedy provided. 4 Bac. Ab. There must be a right, without any adequate remedy, and the right complete, not inchoate. 1 Wend. 318. There must be a specific legal right, and no legal remedy. 2 Binn. 362. It is only used to prevent a failure of justice; and from the very nature of the proceeding, its summary process and peremptory character, the courts have ever been justly cautious in it, and jealous of its consequences. 2 Cow. 482. In this case was there no remedy provided ? I contend there was. In H. & H. 290, is given the form of a sheriff’s bond, which is conditioned “in all things to perform his duties as sheriff.” In same book, p. 644, ch. 48, sec. 48, it is made the duty of the sheriff to make a deed to purchasers for property sold. And in the first statute quoted said bond can be put in suit by any party injured by the misfeasance or malfeasance of the sheriff. Here is a specific, legal remedy, provided by statute, ample and complete. Again; the title, if any, which appellant acquired to this property, was an equitable one; from the time the property was knocked off to him, he acquired an equity in the same, to enforce which a court of chancery was, and is now open to him. And as the possession of a chancery remedy will not absolutely debar the writ, or the right, or destroy the jurisdiction of the court, it should always influence its discretion, under the facts and circumstances of each particular case. 10 Wend. 398. And again, it should not be granted against a public officer, when there is a remedy by action against him. He holds his office under the law which prescribes his duties, for a default in which he is liable to be amerced in damages. But before a default is fixed upon him he has a right to appeal to a jury of his peers, the constitutional tribunal in all cases of fact. Carry the doctrine out, and resort will be had to a mandamus in almost every case in which a sheriff is concerned — placing a power in the hands of the judiciary which they are not entitled to by law, and which they should be slow to assume. An authority precisely in point, sustaining my views, in 2 Cowen, 444.
    3. Because it is a summary process, which never will be used where the right of third parties are concerned, and may be injuriously affected thereby. 8 Pick. Mass. R. 47. Upon the resale this property was bid off to a third party, to whom, the sheriff made a deed, and who now holds the legal title to the same. To grant this motion is to deprive him of his rights, and upon this motion he cannot be heard. This point alone I deem conclusive.
    Therefore, as the appellant had his remedy by action against the sheriff, or in chancery, against all concerned, and the proceeding involves the rights of those who could not be heard, I think the court below was correct in discharging the rule.
   Mr. Justice Teacher

delivered the opinion of the court.

A rule was granted by the circuit court of Tippah county, requiring the sheriff of that county to show cause why a mandamus should not issue directing him, as sheriff of said county, to execute and deliver to Orlando Davis a deed for lot number five, in block number thirteen, in the town of Ripley, purchased under execution sale by said Davis. The sheriff returned for cause the circumstances — that several executions for costs, the amount of which was $130 92§, in’favor of the officers of the circuit courts of Pontotoc and Tishemingo counties, against the Mississippi Union Bank, had come to his- hands, and which he levied upon a house and lot in the town of Ripley; that in due time, this property was offered for sale under the executions for par funds, and purchased by -said Davis, being the highest bidder at the sale, for the sum of $1000 ; that shortly after the sale, said Davis offered the sheriff the amount due the said officers of court upon their executions in specie, and tendered him the remainder of the purchase-money in the paper issue of the Mississippi Union Bank; that the sheriff refused to take the payment of the purchase-money as tendered by the said Davis, or to execute and deliver him a deed of the property ; but, on the same day of the sale, and within the hours prescribed by law, again offered the property for sale, and sold it to some other persons, to whom he made conveyance, and who are now in possession of it. The circuit court of Tippah county discharged the rule, which judgment is claimed to be erroneous.

Without looking into the question of the propriety of the remedy against the sheriff by mandamus, in a case like the present, the circumstances surrounding the transaction alone seem sufficiently to warrant the judgment of the circuit court in disobeying the rule. The statute (H. & H. 644, sec. 48,) makes it the duty of the sheriff, when lands and tenements are sold under execution by him, to execute to the purchaser necessary and proper deeds of conveyance of such lands and tenements, but the law also annexes, as a condition precedent to the performance of this duty, the condition that the purchaser- shall first make payment to the sheriff of the purchase-money. The statute (H. & H. 632, sec. 14,) has likewise provided that when, on any sale made under execution, the amount of the purchase-money shall exceed the debt or damages, interest and costs for which the execution issued, the sheriff shall pay such excess or surplus to the debtor. The reiterated decisions of this court have so adjudicated the law in regard to sales under execution, that the executions of the officers of the circuit courts of Pontotoc and Tishemingo counties could have been satisfied only by specie funds, that is to say, gold and silver. It follows, therefore, that the sheriff was compelled by law to sell the property seized under those executions for such funds. The purchase-money, consequently, could consist only of such funds. However, therefore, the law may control as between the sheriff and the Mississippi Union Bank, the debtor, there being an excess and surplus of purchase-money over the amount of damages, interest and costs in those executions, the sheriff could require the payment of the purchase-money in such funds before he could be compelled to execute and deliver the deed of conveyance.

Judgment affirmed.  