
    *Calvin Wright v. Michael Fitzgerald.
    R. being a mortgage creditor of G-. obtained a decree against Mm, subjecting the mortgaged premises to sale for the satisfaction of Ms debt. The sheriff of the county, falsely claiming to have in Ms hands an order, of sale issued in the cause, obtained from F., who had purchased the equity of redemption, full payment of the decree and costs. A few days thereafter an order of sale was regularly issued and delivered to the sheriff, who indorsed thereon the full payment previously made, but failed to make due return of ' the writ. For this delinquency R. obtained judgment against him and the sureties on Ms official bond for the amount of the debt, and collected the same from W., one of said sureties. W. thereupon brought an action, seek ing to be subrogated to the rights of R. under his decree, and to have an order of sale issued thereon for his benefit. He did not allege in his pleadings that the sheriff had, before the writ came to his hands, or prior to his indorsement of payment thereon, converted to his own use the money so paid and indorsed: Held, that such payment having been properly applied by the sheriff in full discharge of the writ, operated as a satisfaction of the decree under which it was issued, and that R. had no further rights under the decree to which W. could be subrogated.
    Error to the court of common pleas of Perry county. Reserved in the district court.
    The proceeding in the common pleas was an action brought by 'Calvin Wright against John Richardson, James Grace, William D. Fulton, James Porter, Isaac Fowler, Hixon Hunt, A. E. Osborn, Michael Fitzgerald, and Nathaniel Skinner.
    The petition, filed August 11, 1862, alleges that Grace, on April 1,1854, made two notes to Richardson for $150 each, and to secure them a mortgage on forty acres of land, and that the notes not having been paid, Richardson, on February 16,1858, filed his petition to foreclose, and, on March 25, 1858, in Perry common pleas •obtained judgment for $224.05 and costs, with an order for the sale ■of the land; that, on November 23, 1858, an order of sale'was issued, which, on the same day, came to the hands of Skinner, then sheriff of the county, and that he wholly neglected and refused to execute it or to return it within sixty days, by reason whereof a night of action accrued in favor of Richardson against the sheriff •and his official sureties to the' amount of the judgment. That on •the second Tuesday of October, 1858, Skinner was elected sheriff for two years, gave bond, etc.; and by the act of the legislature of April 12, 1858, his term was extended to the first Monday in January, 1859, and for the term of this extension, *Wright, the plaintiff, arid Fulton, Porter, Fowler, Hunt, and Osborn became his official sureties; and that he was acting under this extension when his default in not returning the order of sale occurred. That on April ■6,1861, Richardson commenced his action against Skinner and his said sureties for not executing and returning said order of sale, and on February 28,1862, recovered judgment against them for $276.70 and $16.47 costs, which Wright had to pay. That Grace paid no part of the original or latter judgment, and that the land has not 'been sold for that purpose. That Skinner is, and was when he received the order of sale, wholly insolvent, and has not procured to <be issued for his benefit, against Grace, an order of sale or execution ■on the original judgment, as by statute might lawfully be d one; that the original judgment and decree against Grace is in full force, unreversed and unsatisfied, except by the payment made by Wright as .above. That Fitzgerald claims some interest in the land. The prayer is that the plaintiff, Wright, be subrogated to the rights of Richardson in the land, that it bo sold, and out of the proceeds ho be refunded the amount paid on the judgment as stated, and for other relief.
    Osborn, Porter, Hunt, and Fowler entered their appearance by indorsement of the petition. Service was made on Skinner and Fitzgerald. The sheriff returned “ not found ” as to Grace. No process was issued against Richardson or Fulton, nor did they appear in the case.
    A demurrer to the petition was sustained and judgment entered Against the plaintiff, and the case was taken to the district court, where the judgment was reversed and the cause remanded for further proceedings.
    ■ On the case coming back to the common pleas, Skinner filed an Answer, stating that while sheriff for the time Wright was one of his sureties, he received of Fitzgerald, who was the owner of the land, the full amount of the notes and mortgage for the use of Richardson, and entered the same upon an order of sale and made due return of the same.
    To this answer Wright demurred.
    Fitzgerald answered: That he is the owner of the land, and while Skinner was sheriff and Wright was one of his sureties, *he, Fitzgerald, paid to Skinner the full amount of the notes and mortgage ; that he having purchased the land and assumed the payment of the notes and mortgage, the sheriff told him he had. an order of sale duly issued, on which he was authorized to receive the money, and that unless the same was paid, ho would advertise and sell the land as directed by the order; that he took a receipt which, after stating the case, acknowledged the receipt of the money upon an order of ‘sale issued in the case of Richardson v. Grace, and was signed by Skinner as sheriff, and that the reason the sheriff did not proceed to sell the land, was because he had received the full amount of the judgment from Fitzgerald, who had purchased the land and Assumed the payment of the notes and mortgage. That after the payment, an order of sale was issued to the sheriff in the case, on wbich he applied and indorsed the money so paid in satisfaction, whereby the judgment was satisfied.
    To the answers of Skinner and Fitzgerald, Wright replied as follows : Admits the payment by Fitzgerald to Skinner, November 11, 1858, in full of the judgment, and that Skinner gave a receipt in the following words:
    Court of Common Pleas of Perry County,. Ohio.
    “Received of James Grace, by Michael Fitzgerald, two hundred' and forty dollars and ninety-two cents, in. full of the above judgment. November 11, 1858. N. Skinner.”
    Rut avers that then Skinner had no writ in his hands; that afterward, on November 23, 1858, Richardson procured an order of sale to be issued to Skinner, who, while he had such order, gave, another receipt to Fitzgerald in the following words:
    Court of Common Pleas of Perry County,. Ohio.
    
      “ Received of James Grace, by the hands of Michael Fitzgarls, the sum of two hundred and forty-five dollars ninety Scents-($245.90), in full satisfaction of the judgment and costs in the above-case. December 22, 1858. N. Skinner.”
    And that Skinner indorsed on the order of sale that he had received the full amount thereof and costs. That Skinner did not receive any other or further sum of money than the amount paid to-him by Fitzgerald, November 11, 1858; and that he failed and neglected to execute and return the writ.
    To this reply Fitzgerald demurred.
    The court sustained the demurrer and dismissed the action.
    To reverse this judgment, Wright filed his petition in error in the district court, wherein the case was reserved to this court for decision.
    
      D. W D. Marsh, for plaintiff in error.
    (No brief for plaintiff in error has come to the hands of the Reporter.)
    
      
      Blunter & Daugherty, and W. E. Finch, for defendant in error.
   Scott, J.

The plaintiff here complains that the court of common pleas erred in sustaining the demurrer of defendant, Fitzgerald, to the reply of the plaintiff, and in thereupon rendering judgment against him. The reply demurred to admits that defendant, Fitzgerald, on the 11th day of November, 1858, paid to Skinner, the sheriff, the fall amount of the judgment or decree which had been previously rendered against Grace at the suit of Richardson, and took a receipt in due form therefor from the sheriff. It avers, however, that the sheriff, Skinner, had at that time no order of sale or writ of execution in his hands, none having then been issued in the cause. It is further admitted in the reply that twelve days afterward, on the 23d day of the same month, an order of sale was duly issued in the cause, at the instance of the creditor, Richardson, which on the same day was placed in the hands of the sheriff for execution; upon which writ the sheriff, within thirty days thereafter indorsed the fact that he had received the full amount thereof, with costs, and at *the same time receipted anew to Fitzgerald for the full amount of the decree and costs in the cause in which the writ had been issued. There is no averment that the sheriff had, before the writ came to his hands, converted to his own use or in any way misapplied the money previously and prematurely paid to him by Fitzgerald in satisfaction of the decree. In the absence of any averment of that kind, we are not to presume that he was guilty of any such act of bad faith.

The sheriff, then, having in his hands the money paid by Fitzgerald in fall satisfaction of the decree, it became his clear duty to apply it as he did when the order of sale came to his hands. He could not honestly do otherwise. And of this proper application of the fands in his hands neither the creditor, Richardson, nor the sureties of the sheriff, have any reason to complain. The plaintiff’s reply does not show that he, or any one else, was prejudiced by payment being made before the sheriff was legally authorized to receive it. And the sheriff having applied the moneys paid by Fitzgerald to the satisfaction of the writ in his hands, by proper indorsement thereon, the decree, under which the writ issued, was thereby fully discharged and satisfied, and Richardson was entitled to no farther process thereon against Grace, the mortgagor, or the mortgaged premises Then owned by Fitzgerald; and as against them be has no rights to which the present plaintiff or any one else can be subrogated.

The demurrer to plaintiff’s reply was properly sustained; and the judgment of the court of common pleas must be affirmed.

Day, C. J., and White, Welch, and BrinkErhoee, JJ., concurred.  