
    *Sage & als. v. Dickinson & als.
    July Term, 1880,
    Wytheville.
    Absent Moncure, P.
    
    A judgment is obtained in 1870 on a contract entered into prior to the present Constitution of Virginia, and in the same year an execution issued thereon, placed in the hands of the deputy sheriff and levied on property of the judgment debtor, who gives a forthcoming bond; and has the property forthcoming, on the day and place of sale. The debtor then claims the property as exempt under the homestead provision of the Constitution and statute of Virginia; and the deputy sheriff releases the property to him, without requiring an indemnifying bond of the ■ creditor, or even notifying him of the claim of homestead set up by the debtor. In a suit by the creditor against the sheriff and his sureties to recover the value of the property lost by the conduct of the deputy — Held:
    1. Sheriffs — Surrender of Property Levied on — Failure to Require Indemnifying Bond — Liability.—The sheriff and his sureties are liable.
    2. Case Distinguished. — The case distinguished from Huffman v. LeffeVs adm’r, 32 Graft. 41.
    3. Executions — Surrender of Pi-operty Seized under — Liability of Officer.— When an officer surrenders property he has seized under execution, he does it at his peril, and the burden of establishing that it is not liable to levy is on him.
    4. Same — Same—Same—Action to Enforce —Waiver—Limitation—The plaintiff in the judgment, after the sheriff’s return on the execution filed his bill in equity to subject the land of his debtor to satisfy his debt and having in 1875 exhausted this fund, he then in 1876 instituted his action against the sheriff and his sureties to recover the balance. Held:
    *lst- The delay in bringing the action is not a waiver of his action against the sheriff.
    2d. The liability of the sheriff and his securities being fixed, it cannot be affected by any delay short of the statutory period of limitation.
    This was an action at law in the circuit court of Dee county brought in 1876 by William B. Dickinson (suing by the Commonwealth of Virginia), against William W. Sage, sheriff of Dee county, and his sureties in his official bond. William B. Dickinson had recovered a judgment against John D. Sims in May, 1870, for $5,320, with interest and costs, on a contract entered intoprior to the adoption of the present Constitution of Virginia, containing the homestead exemption. In June. 1870, he sued out an execution of fieri facias on this judgment, which went into the hands of Daniel §. Dickinson, _ deputy for W. W. Sage, and he levied it on the property of the judgment debtor, who gave a forthcoming bond; and the property was delivered at the time and place of sale. Si-ms then claimed the property as exempted under the homestead provision of the Constitution, and statute of Virginia. Commissioners were then appointed to value the property, and they having valued it less than $2,000, the deputy declined to proceed to sell it and left it with Sims; not having required an indemnifying bond; or so far as it appears not having given any notice to the plaintiff in the execution. His return upon the execution after setting out the 'property levied on, and that a forthcoming bond was taken, concludes— “Whereupon the defendant John D. Sims, filed his homestead deed, and commissioners were appointed to value his property, and nothing was left upon which this fi. fa. could act.”
    William B. Dickinson then proceeded to subject the real estate of Sims to the payment of his judgment; *and a balance still remaining after the land had been exhausted he brought this suit against the sheriff and his sureties to hold them liable for the value of the property released by the deputy.
    The only question made in the circuit court was, whether the deputy sheriff was liable for releasing the property upon which he had levied the execution. And a jury being waived the courtrenderedajudgmentinfavor of the plaintiff for $700.35, with interest from the 1st of December, 1870, and his costs. And thereupon the defendants excepted, and applied to a judge of this court, for a writ of error and supersedeas; which was awarded.
    P. Hagan, for the appellants.
    Campbell & Trigg and Harrison, for the appellees.
    
      
      Judge Moncure was compelled by ill health to leave the court, and did not sit in. any subsequent case decided at Wytheville.
    
   STAPDES, J.,

delivered the opinion of the court.

In this case the deputy sheriff levied the execution upon the effects of the debtor, a forthcoming bond was given, and the property subsequently delivered at the time and place appointed for the sale. Thereupon the debtor claimed the benefit of the homestead exemption; the deputy sheriff surrendered the property to him, and returned the execution to the office with the following endorsement: “Executed by levying on eight head of horses, fifteen head of cattle, eighty head of hogs including pigs, twenty head of sheep, one stack of wheat, thirty bushels of wheat, four stacks of wheat, three hundred dozen oats; delivery bond taken.” Whereupon the defendant John D. Sims filed his homestead deed; commissioners were appointed to value his property, and nothing was left upon which this could act. This was in September, 1870. The present action was '^brought in 1876, to hold the sheriff liable for an alleged default of his deputy in failing to sell the property embraced in the levy.

Two facts are conceded: Eirst, that the debt was contracted prior to the adoption of the present Constitution; and therefore as to that debt, the debtor was not entitled to the homestead exemption. Secondly, that the deputy sheriff abandoned the lev}'’, and surrendered the property without demanding an indemnifying bond, and without even informing the plaintiff of the claim of homestead and the surrender of the property to the defendant. In this respect the case is very different from that of Huffman v. Leffel’s ex’or, reported in 32 Gratt. 41. In that case where the claim of homestead wasmade, the deputy sheriff informed the creditor of the fact, and required an indemnifying bond to be given — which was not done; and then the officer refused to proceed with the levy and sale. It was held by the circuit judge that even this state of facts did not release the sheriff from liability, because the constitutional provision exempting property as against antecedent debts is null and void; and there was no such doubt with respect to the liability of the debtor’s effects to levy and sale as warranted the sheriff in demanding indemnity. And this court had at first some difficulty in reversing the judgment. Tt was, however, finally decided, that the unsettled state of the law with respect to the validity of these exemptions as applied Jo antecedent debts, the great diversity of opinion on that subject, among judges and members of the bar, in this and other states, un ■ til the adjudication by this court and the supreme court of the United States, justified the sheriff in demanding an indemnifying bond, and in refusing to proceed with the levy upon the refitsal of the creditor to give the bond. But a reference to the opinion of the court in *that case as delivered by Judge Burks, will show that the exemption of the sheriff from liability was placed almost exclusively upon the ground that the creditor had been requested, and had refused to give the indemnity. Judge Burks said — “There could be no doubt that the sheriff is liable to the relator for the full amount of the execution unless he has been excused from making seizure and sale of the property by the failure or refusal of the plaintiff in the execution to give the indemnifying bond which was required of him.”

This rule thus laid down is decisive of the present case unless it is now to be abandoned. We see no reason for so doing. When an officer deliberately surrenders property he has seized under execution he does so at his peril, unless he can show it was not justly liable to levy. In every such case he takes upon himself the burden of establishing the exemption. Herman on Executions, §412; Ereeman on Executions, § 254. In the condition of things existing in this State before the courts had finally passed upon the constitutionality of the homestead exemption as applied to pre-existing debts, no isheriff or other officer was under any obligation to take upon himself the responsibility of disregarding the exemption. Neither was he authorized, on the other hand, to assume the power of deciding that these exemptions were valid. The law afforded him an easy remedy for avoiding every difficulty, and of relieving himself of all liability on the subject, and if he did not choose to avail himself of it the loss must fall upon him, and not upon the creditor. Code of 1873, ch. 349, § 4.

That the deputy did have doubts in the present case is obvious from the fact that when the exemption was claimed he declared he would not sell the property till he could see further. What further enquiries he *made, if any, does not appear. It is not pretended that he ever notified the creditor of the claim of homestead, or of his surrender of the properly. Why he did not do so, we are not informed. His counsel suggests that the creditor resided in a different county. If this be so, it would constitute no valid excuse. On 1he contrary, the fact of such non-residence would seem to make it the more important to inform the creditor, that he might take the necessary steps for protecting himself.

The real difficulty in this case grows out of the long delay of the plaintiff in bringing this suit. From which it has been argued with some force, that he must have been content with the action of the deputy sheriff in refusing to sell; and the present action is an after'thought, due to the decision of this court in the “homestead cases.” It seems, however, the decision in the homestead cases was made in 1872; and as already stated, this suit was instituted not till 1876, so that there must have been some other cause for the delay. That cause is found in the fact that the plaintiff some time after the abandonment of the levy by the deputy, filed his bill in equity to subject the debtor’s real estate to his judgment. That suit was greatly delayed by an appeal to this court by some of the parties. Finally a decree of sale was obtained in 1875 or 1876; but the plaintiff only realized part of his debt — and then, Ihis action was commenced. In this connection it has been very properly urged by ap-pellee’s counsel, that the bill in equity was in aid of the sheriff: that the creditor instead of embarking in a doubtful controversy with the sheriff, very properly first exhausted all his remedies against his debtor; and it was only after this was done he has attempted to hold the officer liable for the default of his deputy: and furthermore that liability being fixed, cannot be ^affected by any mere delay in bringing the action short of the statutory period of limitation.

In addition to all this it may be. observed that the parties went to trial upon a single issue: the defendants on one side, alleging that the deputy sheriff was justified in surrendering the property to the debtor, because it was exempt under the Constitution and laws of the State; and the plaintiff alleging that his debt was contracted before the Constitution and laws were adopted, and therefore the pretended exemption was invalid. This was the single point in controversy. Neither in the pleading nor in the evidence is there anything said with reference to the supposed ratification or acquiescence on the part of the plaintiff in the proceedings of the deputy sheriff. Had the point been directly presented in the court below as matter of defence, it is impossible to say the plaintiff could not successfully have answered it. At all events this court could no-t undertake to say that the judgment is erroneous upon a mere matter of argument in this court baáed upon a supposed state of facts which might be affected by extraneous evidence. For these reasons we are of opinion the judgment of the circuit court must be affirmed.

Judgment affirmed.  