
    LOCKE vs. GARRETT.
    3. Trover lies jgainst an executor for a conversion by the testator in hi# lite-lime.
    2. L , as sheriff,seized the property of G., and, refusing to surrender it on demand, soli it under executions against II., and, by direction of H., paid over the surplus, left from the sale after satisfying the executions, to G. as bis agent: Held — That in an action of trover by. G. against the execu‘or of L., the surplus, thus paid over, cannot be allowed to go in reduction of damages.
    Error to the Circuit Court of Greene. Tried before the Hon. Geo. D. Shortridge.
    This was an action of trover by the defendant against the plaintiff in error, as exjcutor of James C. Locke deceased, for the conversion by the litter in his life time, he being the sheriff of Greene county, of certain slaves, the .property of the said defendant in error. The facts are sufficiently detailed in the opinion of the court.
    J. B. Clarke, for plaintiff in error:
    I. That the action of trovtr is an equitable action, in which justice can be administered according to the principles of equity. — McGowan v. Young, 2 Stew. & Por. 171; Baldwin v. Porter, 12 Conn. Rep. 473; same ease, Sedgwick on Dam-519, and 2 U. S. D. 10, § 211.
    2. A sale by a sheriff confers no title to the property sold where the defendant in execution had no title. — 8 Ohio Rep. 369; 7 Eng. Com. L. Rep. 272.
    3. Where there is a sale by the sheriff of the property of one, under an execution against another for the debt of the latter, and a surplus left in the hands of the sheriff, such surplus does not belong to the defendant in execution, but to the owner of the property. — Taylor v. Williams, 1 Ired. L. Rep. 249 ; Wheeler & McCurdy v. Kennedy, 1 Ala. Rep. N, S. 292; Douglass v. Wallace, 11 Ohio Rep.. 42; Watson on Sheriffs, 83; 7 vol. Law Lib.
    4. And should such owner voluntarily surrender such surplus money to the defendant in execution, he the defendant disclaiming all title to the property from the sale of which such surplus accrued, the owner cannot be permitted to recove#for such surplus in action against the sheriff.
    5. A man cannot be principal and agent at the sime time, nor, as agent for another, become the purchaser »f his own. goods for such other; consequently when as agmt of a defendant in execution, he receives a surplus of tlu sheriff over-satisfying an execution produced by the sale ofhis own property by such sheriff, he holds such surplus no as agent for the defendant in execution, but as his own m<ney.
    6. And should he place himself in the relction of agent to-the defendant in execution in regard to- sud surplus, and it be decided that by such act he could not question the right of his principal, it would be his awn folly, aid a waiver of all right to recover therefor of the sheriff.
    Erwin, contra.
    
   CHILTON, J.

The statute denares that the-actiois of trover shall survive for and against eecutors and administrators. — Clay’s Dig. 313; Nettles, adm’r v. Barnett, 8 Porter’s Rep. 181; 1 U. S. Dig, 63. We ffnk the action; maintainable against the executor. But thj point iis-not urged by the counsel for the plaintiff’ in erro; At the common law we concede the action would not lie against an executor for a conversion by his testator. — 2 Saund.Pl. 886.

It appears that the sheriff seized and sold the property of the defendant in error, who was the plaintiff below, upon art execution against one James S. Hemphill; that he was informed in writing by Hemphill, that the slaves did not belo ng to him, but was requested to sell them, and to pay the over-plus, after satisfying the executions in his hands against Hemp-hill, to the plaintiff, Garrett, whom he authorised to receive and receipt for the same as his agent. There remained after satisfying the executions against Hemphill, the sum of $440 67. For this sum the defendant below, who was the executor of the sheriff, produced and read the receipt of said Hemphill, signed by William Garrett, the plaintiff, said receipt reciting that it was the balance of the money upon the sale of the slaves now sued for, which were sold as the property of said Hemphill.

The court was asked by the counsel for the defendant to charge the jury, that the measure of damages was not the value of the slaves, but the price for which they were sold at the sheriff’s sule, and compensation for their use while in the possession of the sheriff, deducting the surplus paid over to the plaintiff under the foregoing receipt, which charge the court refused to give so far as the surplus was concerned, but ruled that the defeniant, in the estimating of the damages, had no right to have tie surplus deducted, provided the jury should believe that he received the same merely in the capacity of agent for Hemphill. The defendant then asked the court to charge, that the plaintiff could not have been the agent of the defendant in execution to receive the surplus of the proceeds of the sale of his, tie plaintiff’s own property. This charge being refused, the paintiff in error presents them now for our consideration.

It appears that Gai-ett demanded the property of the sheriff before he made the sal, and at the time of sale, forbid his selling, claiming it as his wn. The bill of exceptions does not inform us whether Gatett, the plaintiff, ever paid over to Hemphill the money so pid him, as the surplus arising upon the sale, but the jury have affirmed by their verdict, that the agency did in fact exist, an! that he received it in that capacity. We would then intend, if necessary to support the judgment, that it was paid over.

Conceding that the action of trover is an equitable action, and that the equities of the parties may be investigated and determined in it, we do not think that the plaintiff in error has shown any equitable right to lessen the recovery of the plaintiff by the amount of the surplus which was paid him as agént of Hemphill. In what does this equity consist ? He seized upon the property, being advised in writing by the defendant in the execution, that it was not his: It is demanded of him by the true owner, but he refuses to surrender it, and then with a full knowledge of its situation proceeds, in defiance of the rights of the plaintiff, to make a sale. The surplus was not paid to the plaintiff by the sheriff at the plaintiff’s solicitation, but by virtue of instructions from the defendant in execution to pay the same to him, as agent of said defendant. This operated then a payment to the defendant, Hemphill, whose receipt by his authorised agent the sheriff' held. How then can he, or his executor, be heard to say that the plaintiff could not become an agent, since he fully recognised his agency, and made the payment to him as such, according to the written order of Hemphill? But we think it very clear after the plaintiff had demanded his property, and the sheriff’ refused to give it up, his right of action immediately accrued for the conversion. He was not bound to protect the sheriff in retaining money, which the sheriff paid him for another, with a full knowledge of the facts under which such payment was' made, nor can the sheriff, upon any recognized principle of equity, cast upon the plaintiff, to whom he paid as agent, the burden of litigating with his principal the right to the money, merely for his (the sheriff’s) indemnity.

In this case, the plaintiff chose to rely upon the sheriff’s liability to him for the conversion of the slaves sued for, whicii conversion was complete upon the refusal of the sheriff to give them up to him on his demand. He might well then have done as he did, rely upon this right of action for his indemnity, and treat the property as the sheriff’s. On the other hand, he could have elected to pursue the property and sue the purchaser, had a third person purchased, in detinue or trover, or after the sale and receipt of the money by the sheriff, have brought his action of assumpsit, for money had and received, and have recovered the price — although he might have recovered the'surplus, he was not bound to do so, neither was he bound to hold on to it and thus violate the trust in virtue of which he received it by a refusal to pay it over. We think his original right of action remained wholly unimpaired by his subsequent conduct, and that the ruling of the Circuit Court was strictly correct.

Let the judgment be affirmed.  