Greenwood v. Executors of Colcock

Court of Appeals of South Carolina

Greenwood v. Executors of Colcock

2 S.C.L. 67

DecidedOctober 15, 1796

StatusPublished

This text of 2 S.C.L. 67 (Greenwood v. Executors of Colcock) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Greenwood v. Executors of Colcock, 2 S.C.L. 67 (S.C. Ct. App. 1796).

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Opinion

In this case, the Court was of opinion, that where a sheriff sells property, by virtue of an execution, which is claimed by a third person, not a party to the suit, the rule was, for him to return the money into court to abide the event of the dispute, and then to make his return, conformably to the decision, on the back of the execution. But that it was very wrong, and contrary to every principle of justice, to suffer such party to get possession of the property, or to change the position of the parties by his own act, or to make himself a stakeholder until the right was determined. 1 Burr. 23. 29. Dalt. Comp. Sheriff, 247. 1 Keb. 901.

The court was further of opinion, that the bond given to the sheriff, by the purchaser in this case, to indemnify him for not returning the execution, was void in law, as it was evidently given to the sheriff to induce him to omit doing his duty, and it is very clear that all such contracts are void. Powell on Contracts, 186. 194, 195.

It was therefore ordered, that the sheriff do proceed forthwith to resell the same property at the risk of the pur[68]*68chaser, and return the money into court, subject to the future order thereof, when the merits of this claim shall be determined.

Present, BuRke, Grihice and Bay.

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In this case, the Court was of opinion, that where a sheriff sells property, by virtue of an execution, which is claimed by a third person, not a party to the suit, the rule was, for him to return the money into court to abide the event of the dispute, and then to make his return, conformably to the decision, on the back of the execution. But that it was very wrong, and contrary to every principle of justice, to suffer such party to get possession of the property, or to change the position of the parties by his own act, or to make himself a stakeholder until the right was determined. 1 Burr. 23. 29. Dalt. Comp. Sheriff, 247. 1 Keb. 901.

The court was further of opinion, that the bond given to the sheriff, by the purchaser in this case, to indemnify him for not returning the execution, was void in law, as it was evidently given to the sheriff to induce him to omit doing his duty, and it is very clear that all such contracts are void. Powell on Contracts, 186. 194, 195.

It was therefore ordered, that the sheriff do proceed forthwith to resell the same property at the risk of the pur[68]*68chaser, and return the money into court, subject to the future order thereof, when the merits of this claim shall be determined.

Present, BuRke, Grihice and Bay.

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Bluebook (online)

2 S.C.L. 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenwood-v-executors-of-colcock-scctapp-1796.