Coker & Co. v. McConnell

31 S.E. 411, 104 Ga. 482, 1898 Ga. LEXIS 346

• Court: Supreme Court of Georgia
• Decided: July 18, 1898
• Status: Published

Opinions

Lumpkin, P. J.

The sheriff of Floyd county, under a mortgage execution in favor of P. H. Hardin, against J. S. Howell as administrator, and Catherine H. Howell as administratrix, of the estate of W. C. Howell, sold certain land to W. H. Coker & Co., at the price of $600.00, which sum exceeded the amount due upon the execution. The administrator and administratrix upon the estate of A¥. C. Howell brought an action against Coker & Co., to recover a balance alleged to be due by the latter upon the purchase of this land. By an amendment to the plaintiffs’ petition, the name of the sheriff was inserted as suing for their use. The defendants, without raising any question as to the right of the original plaintiffs to bring the action, or objecting to the introduction of the sheriff as the party plaintiff, set up as a defense that the balance due upon the price of the land had been settled with J. S. Howell as administrator, he having received from the defendants $90.00 in cash, and they, at his request, having entered a credit of $110.24 upon notes due by J. S. Howell individually and by his brother, W. S. Howell, to the defendants. The answer further alleged that the two Howells last mentioned were heirs of W. C. Howell deceased, each being entitled to one fifth of his estate; and that the settlement referred to was acquiesced in by the sheriff, who, in pursuance thereof, conveyed the land to the defendants. By an amendment to their answer, the defendants, in substance, alleged that they had paid to the sheriff a sufficient amount to satisfy the Hardin' fi. fa., and, with his consent and that of J. S. Howell as administrator, had reserved a specified amount with which to satisfy a fi. fa. in the sheriff’s hands in favor of McHenry, Nunnally & Neel, against the estate of Howell deceased, leaving $200.24 as a balance due by them, $90.00 of which they had paid to J. S. Howell in cash, and that the remaining $110.24 had been settled by them in the manner stated in their original answer. The amended answer further alleged that all of the foregoing had been done with the knowledge and consent of the sheriff, and that he permitted J. S. Howell to make the settlement and acquiesced therein. Upon these allegations the plaintiffs requested the court to direct a verdict in their favor for $110.24. The court inquired of defendants’ counsel if he intended to prove that the estate of W. G. Howell owed no debts. Counsel replied, that the suit not having been brought by a creditor, and the plaintiffs not alleging the existence of any debts, “he did'not deem the existence or non-existence of debts as material to the defense.” Thereupon the court, without hearing any evidence, directed a verdict in the plaintiffs’ favor for the sum last mentioned, and this is now complained of as error.

We will remark in the first place, that the representatives of the estate of W. C. Howell could not, as against a proper defense, have maintained this action as-originally brought. There was no privity between them and the purchasers at the sheriff’s sale. Though this administrator and administratrix were entitled to the balance of the purchase-money of the land, in excess of the amount required to satisfy the liens thereon, it was the duty of the sheriff to collect and pay the money over to them. As he was, without objection, made the party plaintiff in the present case, it should be treated as if he had brought it in the first instance. That the administrator and administratrix were the original plaintiffs is of no consequence. They could not, as above stated, have maintained the action in their own right, and therefore they figure in the case as mere usees. That they are such can not give to the sheriff, the real plaintiff, any better footing than he would occupy were he suing alone. This being an action at law, he must show in his own behalf a legal right to have a verdict, or else be cast in the suit. He undoubtedly had, at the outset, a perfect legal right to recover from Coker & Co. the balance due upon the land; and, after so doing, it would, as already stated, have been his duty to pay the money over to the representatives of the estate of W. C. Howell. But taking as true the allegations of the answer and amended answer filed by Coker & Co., which we must do for the purpose of testing the correctness of the judgment now under review, we are satisfied that the sheriff’s original right of action was lost because of the facts set up and relied upon by the defendants as their defense to the action. The amount in dispute is a balance of $110.24, for it seems to have been conceded that Coker & Co. could not, in any event, have been held accountable for more. We do not think they are liable to the sheriff for this balance. The law holds sheriffs responsible for the proceeds of sales conducted by them, and they are bound to pay over such proceeds to the persons entitled thereto. To this end, these officers have a clear and undoubted right to demand the cash from all purchasers at these sales. If a sheriff for any reason chooses not to require a purchaser to pay cash, but accepts something else in settlement of the purchase-money and releases the purchaser, he does so at his own peril, so far as any liability over to him on the part of the purchaser is concerned. If he fails to collect purchase-money and thus incurs personal liability, he has no right to relieve himself from the consequences of his own breach of duty by proceeding against the purchaser whom he has discharged. We repeat that the sheriff’s case in the present instance derives no additional strength from the fact that the representatives of W. C. Howell are named as usees, and that he must recover, if at all, in his own right. We are not now called upon to decide whether the sheriff has incurred liability to them or not. That is a question not made in this case; but if he has, he can not escape it by bringing an action of this sort against Coker & Co., and naming these representatives as usees, any more than he could by bringing the suit without so naming them.

It must not be overlooked that this is a plain action at law. There are no equitable pleadings, and no principles of equity-are involved. The beneficiaries of the Howell estate, whether heirs or creditors, are not concerned .in this litigation. There is no charge of any fraud or collusion, or of insolvency on the part of any of the persons who participated in the transaction disclosed by the defendants’ answer. Of course, all who misappropriate, or participate in the misappropriation of, trust funds are liable to the person or persons ultimately entitled to receive the same. We by no means wish to be understood as holding that the heirs or creditors of W. O. Howell, if it were essential to the preservation of their rights in the premises, could not, by instituting a proper equitable proceeding and supporting the same by sufficient proofs, compel an accounting to themselves by any and all of the persons whose unauthorized acts had caused a misapplication of the assets of the estate. There is not, however, any case of this kind now before the court.

The trial judge erred in directing a verdict for the plaintiff. Conceding the truth of the defendants’ allegations, the verdict ought to have been in their favor.

Judgment reversed.

All the Justices concurring, except