
    The State of South Carolina vs. Alexander W. Yongue.
    In an action in bebalf of the administrator of the debtor in execution to recover ' from the sheriff the difference between the price bid at the first sale and that bid at the resale of land, the resale not being within the time prescribed by law: —Reid, that the sheriff might show in defence that the resale was postponed at the instance of the debtor himself or of one to whom he, the debtor, had previously conveyed the land.
    BEFORE MUNRO,.J\, AT FAIRFIELD, SPRING TERM, 1855.
    Debt on tbe official bond of the defendant late sheriff of Fairfield, to"recover for the benefit of the administrator of Thomas Lumpkin, deceased, the difference between the price bid at the sale and that bid at the resale of a tract of land, which the defendant had levied on and sold as the property of Thomas Lumpkin.
    On the 1st February, 1843, Troy Lumpkin recovered and entered judgment against Thomas Lumpkin, for $555 72, 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, $66, was paid by him in May, 1844. In November, 1843, other judgments to a considerable amount —one being in the name of J. B. Betts, and another in the name of S. R. Johnston — were recovered against Thomas Lumpkin. These judgments were all paid off by the defendant, Yongue, before the resale on the 5th of February, 1855, hereinafter mentioned, except the judgment of S. R. Johnston, which was satisfied by that resale. “
    Under the executions of Troy Lumpkin and J. B. Betts, the defendant, in January, 1844, levied upon a tract of land as the property of Thomas Lumpkin, and on the 5th February, 1844, offered it for sale, when it was bid off by James Cathcart for $2,650 dollars. One' W. L. Pickett was in some way interested in the sale, and in April, 1844, he paid $700, on account of the bid. The balance of the purchase money not being paid, the defendant advertised the land for resale 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 had taken charge of the office a few days before, and was bid off by W. L. Pickett for $2000.. Pickett also failed to comply, and the land was again advertised for sale at the risk of the former purchaser,— the sale to take place in February, 1845. It was then sold to one Mobley for $835, who paid the purchase money and received a deed of conveyance from Cockerell. One Abraham F. Lumpkin, 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. In his defence the defendant offered to prove, that Thomas Lumpkin, on the 2d March, 1843, had conveyed the land to his son, Abram F. Lumpkin, in trust for the payment of debts; and that Abram F. Lumpkin and some of the judgment creditors of- Thomas Lump-kin, had agreed, with W. L. Pickett, before the sale in February, 1844, that time should be given until the 1st November, 1844, for the payment of the purchase money, — Pickett agreeing to become the purchaser, at $2600. This evidence was excluded by his Honor.
    The plaintiff had a verdict for the difference between the sale to Cathcart and the sale to Mobley, deducting the $700 paid by Pickett.
    The defendant appealed.
    Buchanan, for motion.
    McAliley, contra.
   The opinion of the Court was delivered by

Glover, J.

If Thomas Lumpkin conveyed to Abram F. Lumpkin on the 2d March, 1843, the tract of land sold by the sheriff, the only lien on, it then was the judgment in favor of Troy Lumpkin, which was afterwards fully satisfied. The sheriff could not protect himself against a breach of his bond in neglecting to resell, suggested for the benefit of judgment creditors whose liens attached before the sale, on the ground that either Thomas Lumpkin or Abram P. Lumpkin requested a postponement; but where the sheriff delays a resale at the instance of the judgment creditors, their consent would be a sufficient answer to an action brought against him for his neglect in this respect.

The breaches suggested in the case before the Court are not at the instance not for the benefit of judgment creditors, but for the legal representative of Thomas Lumpkin; and may not the sheriff show that, before judgments were signed and executions were entered in his office, Thomas' Lumpkin had conveyed the land to Abram P. Lumpkin in trust to pay debts, and that at the instance of Thomas Lumpkin or of Abram P. Lumpkin, the trustee, the sheriff had delayed a resale ?

Creditors of Thomas Lumpkin, who had no liens on this ' land, may compel Abram P. Lumpkin to perform the trust declared in the deed under which he holds; but they cannot recover on the breaches assigned in this case.

A majority of the Court is of the opinion, that the sheriff may reply to the suggestions of Thomas Lumpkin’s administrator by showing that the legal title was in Abraham P. Lumpkin, and that at his request, or at the request of the intestate, a resale was postponed, and that for this purpose the evidence .should have been admitted.

Motion granted

O’Neall, Wardlaw and Whitner, JJ., concurred.

Munro, J., dissented.

Motion granted.  