Armstrong v. Vroman

By the Goivrt Berry, J.

Taken as a whole, the complaint shows sufficiently that this action is brought by the respondent in his capacity as sheriff of Hennepin county, and this was entirely proper. It was the sheriff’s duty to make the money upon the execution, and in so doing he acted, as was held by the judge below, as an officer of the law. Hntil the money realized from the sale of the land came into the hands of the sheriff, the judgment creditor had no legal interest in it. It was the sheriff’s business and duty to get it into his hands, to collect it, and then to pay over to the plaintiff in the execution. For this purpose, it was his right to enforce the collection, by suit if necessary, both for the sake of securing his own fees, and that he might have funds wherewith to respond to the judgment creditor. As is said in Gaskell v. Morris, 7 Watts & Serg., 39 , “That the sheriff may maintain an action to recover the whole amount of the purchase money in his own name, when he seeks to perfect and carry the. sale into effect, is no.t denied, but admitted; and why? Because the contract for the sale of the estate is made with him by the purchaser, and with him alone, and therefore it is that he or his representatives can alone maintain an action for the breach of such contract. * * * The sheriff may very properly be considered as invested with a trust by law to sell the estate, which he has full power and is bound to perform for the benefit, not only of the creditors of the owner, but likewise for the owner himself, and in order to execute this trust for the benefit of all concerned; it is not only proper, but necessary, that he'should have a like right to maintain such an action as if he were the legal owner of the estate.” Adams v. Adams, 4 Watts, 561 ; 5 Ib., 515; 9 Serg. & Rawle, 164 ; 11 Ib., 134; 2 Penn., 18 ; 5 Cowen, 390; 9 Johns., 98 ; Chappell v. Dawn, *223 21 Barb. (S. C.) 24; 3 Ohio, 449; Crocker on Sheriffs, 182, 201, Sec. 473; 2 Cow. Trea., 549, citing 1 H. Blackstone, 81. It may be remarked, that it would not perhaps be unreasonable to regard the sheriff as a “trustee of an express trust,” under the definition found in Sec. 29, page 535, Pub. Stat. It is insisted by the appellant, that the execution sale was void, because it does not appear that a note or memorandum in writing, was made at the time of the sale, and subscribed as required by the Statute of Frauds. If such memorandum be necessary, it was not necessary to allege the making of it. 8 Minn., 131 ; Lockwood v. Bigelow, page 113, ante. But the majority of the court are of opinion, that the proper evidence of a sale of real estate upon execution, is prescribed by the statute on that subject, and that no note or memorandum other than the certificate of sale is required. The proper certificate of sale having been tendered in this case, and the amount of the bid demanded, the action is well brought. The order overruling the demurrer is affirmed.,