
    Samuel Sidner and Richard Cowling’s Executors v. Juliet Alexander.
    1. Previous to the act of April HO, 1868 (S. & S. 734), where a sheriff who-was his own successor, had received money in his official capacity during his first term of office, which was in his hands when he gave bond and qualified for his second term, and subsequently failed, on demand,, to pay the money to the party entitled thereto, the sureties on his official bond for the second term, are not liable for such default.
    
      %. Where lands wore bid in at partition sale by one, for the benefit of all the-parties in interest, and the sale was reported by the sheriff, and continued for confirmation ; and the bid was afterward transferred to P. at a higher price, on condition that the court would allow P. to be substituted for the bidder and confirm the sale, and order a deed to be made to P., all of which was subsequently done by the court; and P. then paid to the sheriff a portion of the sum at which he purchased, the same being less than the sum at which the lands were first bid in, and which sum the court ordered the sheriff to pay to the parties entitled thereto, hut which he neglected to do: Held, that the sureties on the official bond of the sheriff were liable for the money so received by him.
    
      Motion for leave to file a petition in error to reverse the judgment of the Distinct Court of Madison county.
    The original action was brought in the court of common pleas on the official ‘bond of B. II. Lewis as sheriff, as more fully stated below.
    He was elected, gave bond, qualified, and served for two consecutive terms as sheriff. The first term commenced on the first Monday of January, 1866, and continued two years. The second term of two years commenced on the second Monday of-January, 1868. The sureties upon the bonds for the respective terms were not the same. Hpon the bond for the second term, Samuel Sidner and Richard Cowling were sureties, and this is the bond sued on.
    The petition contains two causes of action, and the facts constituting the causes of action respectively, are briefly as follows : On the 23d day of December, 1865, eight days before the commencement of Lewis’ first term of office, his predecessor sold a large tract of land in proceedings in partition. The lands were subdivided and sold in eight lots. Six of the lots wore sold to bona ficle purchasers for the aggregate sum of $10,378.90, payable in three installments. After Lewis had entered upon the duties of his first term—i. e. at the May term, 1866, of the court of common pleas—■ the sales, as to these six lots, were confirmed, and Lewis ordered to make deeds to the purchasers respectively ; and the first installment of the purchase money being then in Lewis’ hands, he was ordered to distribute it to the parties-respectively entitled to it, and he was further ordered to-take the.notes and mortgages of the purchasers respectively for the deferred installments. At the February term of the court, 1867, the second installment being in his hands,'he was ordered to make distribution of the same. There is no-question but that these two installments were distributed in pursuance of the order of the court. Just before the close of Lewis’ first term of office, in November and December, 1867, the third installment of the purchase money was paid to and received by him officially, and was remain■ing in his hands on the first Monday of January, 1868, ■when he gave the bond sued oii, and entered upon his second term of office. At the February term, 1868, the court found the third installment to he then in the hands of Lewis, and ordered him to distribute the same to the persons entitled thereto. Juliet Alexander, being one of the tenants in common, was entitled to one-seventh part thereof. On the 12th of June, 1868, she demauded of Lewis the amount due to her under the order of the court, but he refused to pay. By her first cause of action, she ■seeks to recover her share of this third installment.
    At the partition sale on the 23d of December, 1865, lot No. 7, was struck off to J. T. L. Preston, one of the parties in interest, for the benefit of himself and his co-tenants for twelve dollars per acre, amounting to about $945. This •sale was reported to the court, and was, by its order, continued.for confirmation, from term to term. In January, 1869, Preston transferred and assigned to Solomon Paugh said lot No. 7 for the price of eighteen dollars per acre, .amounting to about $1,400, payable $500 down, and the residue in two equal annual payments; which sale was made on condition, as stipulated in the written agreement •of"transfer, that the court would permit Paugh to be substituted as the purchaser of lot No. 7, in the place of Preston, and confirm the sale and order the sheriff to make the deed directly to Paugh. At the February term, 1869, the court ordered Paugh to be substituted, as the purchaser, in the place of Preston, and confirmed the sale to him at ■eighteen dollars per acre, and ordered the sheriff to execute and deliver a deed for lot No. 7 to Paugh. At the same term of the court, Paugh liaviug paid t.o Lewis, as •sheriff", the first payment of $500, the court ordered the latter to distribute this sum to Juliet Alexander and the other parties entitled to the same. She subsequently demanded her share of this sura from Lewis, who refused to pay. By her second cause of action, she seeks to recover her share •of the first $500 so paid by Paugh-.
    The defendants in the court below, Sidner and Cowling, demurred to each cause of action. The demurrers were-overruled. Cowling died pouding the action, and his executors were made parties, and they and Sidner answered. It is unnecessary to notice the answer to the first cause of action, as it is disposed of on the demurrer.
    The answer to the second cause of action, in substance,, was: First. That Lewis and his successor, who received and distributed the last two installments paid by Paugh,. had paid out in money, to the parties in the partition suit more than the amount of the sale made to Preston, at twelve dollars per acre. Second. That the sale of lot No. 7 to Paugh was a private sale made by Preston to Paugh, and a private arrangement and agreement with Lewis, by which lie was to receive the money and notes of Paugh as agent of the parties; which arrangement between said parties and said Lewis was unknown to said Cowling and Sidner, or either of them, and without their consent, or the consent of either of them.
    The reply denies the averments of the last answer. .
    The only evidence offered by either party on the trial of this issue, was the written contract between Preston and Paugh, which is alluded to in the opinion.
    There was a joint judgment for the plaintiff'on both causes of action. On error, the judgment was affirmed by the district court.
    The plaintiffs in error now ask the reversal of both judgments. The errors relied on are the overruling of the demurrer to the petition, and the giving of judgment for the plaintiff in the original action, on the pleadings and evidence.
    
      JamesL. Bates, forthe motion, claimed:
    1. That the sureties on Lewis’ bond for his second term are not liable for his failure to pay over the money sued for, because-the sheriff had no right to receive it., add because it was received during his first term.
    At the time of this transaction, there was no authority,, by statute or otherwise, for the delivery by a sheriff to his successor of moneys or notes or vouchers of any description.
    To remedy this supposed defect, the act of April 30,1868, was passed.. (8. & S. 734.)
    Suppose Lewis had delivered the notes or money, or .both, to his successor, and that successor had received them, it would have been unauthorized on the part of the successor, and his bondsmen could not have been made liable for his loss or misapplication of them.
    Is a different rule applied when a sheriff is his own successor? Clearly not.
    2. Lewis’ sureties are not responsible for the money received by him in the partition proceedings.
    The receipt of the money was not an official act.
    In order to make the sheriff responsible in his official capacity for money received, he must have some writ, or written authority, which is in force at the time, and upon which a return can be made.
    The receipt of the money, under the circumstances, was not an official act. Gwynne on Sheriffs, 572; 3 Bibb, (Ky.) 432 ; 7 B. Monroe, 250; Crane v. Bidwell, 25 Miss. 507; Em. J3. McFarland v. Wilson et al., 2 Sm. & M. 269 (Miss.); Commonwealth for, etc. v. Sommers, 3 Ky. 555 ; Nathan Fane, State Treasurer, v. Gilmore et al., 51 Me. 544; City of Boston v. Moore et al., 3 Allen, (Mass.) 126.
    The court could not have authorized the arrangement made between Preston and Paugh.
    The contract was a proceeding outside of the order of sale—outside of the case; and the payment by Paugh to Lewis was a mere matter of accommodation, for which no official liability was or could have been created. Webb v. Anspaeh, Bro. Sf Co., 3 Ohio St. 522.
    3. There was no assignment of Preston’s bid to Paugh.
    A bid may be assigned or transferred, but the sheriff can not be held officially for money paid on such bid, by the bidder or his assignee, except during the life of the order of sale. Crane v. Bidwell, 25 Miss. 507; McFarland v. Wilson, 2 Sm. & M. 269 (Miss.); 3 Ky. 555; Allen, (Mass.) 126; 21 Ohio St. 402.
    
      
      Harrison, Olds § Marsh, contra, claimed :
    1. That unless there was an actual conversion or embezzlement of the money by Lewis duriug his first term, there was no breach of his official duty. It is immaterial when the money was received by Lewis. It is the time of the breach, and not the time of the receipt of the money, that determines which set of sureties are liable. If the money was in his hands at the commencement of the second term, then the sureties on the second bond are liable. Vivian v. Otis, 24 Wis. 518; 5 Pet. 373; United States v. Boyd, 15 Pet. 206United States v. Linn, 1 How. 104; Bruce v. United States, 17 How. 437; Morley v. Town of Metamora, 78 111. 394; Ingram’s Adm’rs v. McCombs, 17 Mo. 558.
    2. That Lewis received the five hundred dollars as sheriff) and by virtue of his office, and hence, his sureties are liable.
   Gilmore, J.

The demurrer to the first cause of action should have been sustained.

The money for the recovery of which the action was brought, was received by the sheriff' during his first term of office, and before the execution of the bond on which the action was brought.

Whether the money was rightfully received by the sheriff, •Or whether he converted it by mixing it with other moneys belonging to him, and depositing them in bank to his individual credit, is, in the view that we take of the case, wholly immaterial. Putting the case in the most favorable aspect for the plaintiff below, it is assumed that the sheriff rightfully received the money in his official capacity in November and December, 1867, shortly before his first term of office expired, and that the money was in his hands at the time his bond for his second term, upon which the defendants are sureties, was executed; and that it was still in his hands when the court ordered its distribution and payment to the plaintiff and others by tiie sheriff; still, the plaintiff was not entitled to recover.

Previous to the act of April 30, 1868 (S. & S. 734), there was no law in this state authorizing or requiring an outgoing sheriff to deliver over to his successor, moneys, notes or mortgages, received, and taken by him in his official capacity. The transactions in this case' occurred before this act was-passed, and the case must be governed by the law as it stood at the time the transactions occurred.

Without reference to what may be the law on this subject in other sfates, it was settled in this state that where money was received by a sheriff' in his official capacity, the duty of holding aud properly disposing of it, was an official duty devolved ou him by law while in office, aud though his-term ends, the duty continues until discharged. King v. Nichols, 16 Ohio St. 80; Brobst v. Skillen, 16 Ohio St. 382; Griffin v. Underwood, 16 Ohio St. 389.

The fact that Lewis was his own successor in this instance does not affect the case.

Neither does the fact that the court, after the commencement of his second term, impliedly found that'the money was then in his hands, and ordered its payment to the parties entitled to it, have the effect of chauging the sheriff’s relation to the money, or of altering his official duty in reference to it. If he had not been re-elected, the money would have remained in his hands, until the court ordered, him to pay it out, and then his duty to pay in accordance with the order would have been imperative; for, as that was-a duty that attached when the money was received, it would have continued until it was paid out to the parties entitled to it, and the fact that he was his own successor, neither enlarged nor restricted the duty

Neither did the time that the demand was made upon the-sheriff for the money, in any way affect his official duty.

When the demand was made, and the sheriff refused to pay, he was guilty of a breach of official duty, and by relation, this operated a breach of the condition of the official bond in force at the time the mqney was received, and for which the sureties ou the bond for the second term, which was subsequently executed, are not liable.

The demurrer to the first cause of action is sustained.

2. The demurrer to the second cause of action was properly overruled.

The sale made to Preston and' reported to the court by the sheriff, was continued for confirmation. The court thus, retained jurisdiction of the parties and of the subject-matter. The subsequent sale by Preston to Paugh was-sanctioned by the court, and Paugh was substituted as the purchaser and the sale confirmed to him, and the deed was-ordered to be, and was made to him accordingly.

The price that Paugh agreed to pay for the land was considerably greater than, that at which Preston-had bid it in ;. and although the order of distribution is based on the-amount agreed to lie paid by Paugh, we think the transaction must, at least, be regarded as a judicial sale at the price at which the property was bid iu by Preston, and to-this extent the sheriff was officially bound to make distribution of the proceeds. The only sum that Lewis received, on this side was $500, which was much less than Preston’s-bid; and he must be regarded as having received this sum in his official capacity'. It was received after he had entered upou his second term of office, and, hence, while the bond, sued on was iu force. Having failed to pay to the plaintiff" below, on demand, her share of the sum so paid by Paugh,. in pursuance of the order of the court, she must recover on this cause of action, unless the matter set up in the answer- and not denied constitutes a defense, or unless the issue joined should have been found for the defendants upon the evidence.

As to the first, the fact that the successor of Lewis has-subsequently received from Paugh, and paid out in pursuance of the order of the court, the last two installments of the purchase-money of lot No. 7, aud that these sums, together with what Lewis has paid out of the $500, amount to more than the sum at which Preston purchased the lot,, do not, we think, constitute a defense to this cause of action. It has been said Lewis received the $500 officially, and his. duty to pay7, the same out in pursuance of the order-of the-court became at once fixed ; and - no subsequent act of his :suceessor in reference to other funds, could have the effect ■of relieving him from the discharge of his official duty in refez’enee to the fund so in his hazzds.

Th.e issue made by the answer to this cause of action, and the reply thereto, was properly found for the plaintiff. The only evidence offered on this issue was the written contract between Preston andPaugh, which was relied upon by the ■defendants below to establish the fact that the sale as between Preston* and Pangh was private, and that there was •a private agreement made with Lewis by which he was to act as the agent of all the parties in receiving and distributing..the proceeds of the sale made to Paugh. But .when this evidence, is'taken in connection with the proceedings and order of the couz’t in confirming the sale, and ordering the distribution as they appear in the record, it wholly fails ■to prove the issue for the defendants below.

The judgment is erz’ozieous as to the first cause of action, and as to this must be revez’sed. The zccoz’d contains data fi’om which the amouizt that the plaintiff below is entitled to recover on the second cause of action can be ascertained ; and this court, proceeding to render the judgment that the district court should have rendered, will give judgment in favor of the plafhtiff below for the amount appearing to be ■due on the second cause of action.

Judgment accordingly.  