Ward v. Healy

Henshaw, J. These appeals are from the judgment and from the order denying defendant a new trial.

Plaintiff for cause of action set forth that upon May 25, 1893, one James M. Smith was, by the superior court, adjudged to be an insolvent debtor, and, on said day, plaintiff, sheriff of the county, was appointed receiver of his property. Upon the eighth day of June, 1893, plaintiff “gave the bond required by said order and entered upon the discharge of his duties as receiver, and acting as such receiver took possession of sixty head of horses belonging to the insolvent.” Thereafter he gave due and legal notice that upon June 24, 1893, he would as receiver sell said horses at public auction. Defendant claimed some interest in or lien upon the horses, and sought an order from the court prohibiting the sale. Thereupon such proceedings were had in the matter that the following stipulation was entered into between defendant and the receiver, and spread upon the minutes of the court: “Counsel now agree that the sheriff now proceed to sell the property now in his keeping, and advertised to be sold this day, belonging to the said insolvent, the proceeds of said sale to. be held by him subject to the decision of this court as to its disposal.” In pursuance of this stipulation plaintiff proceeded to sell, and did sell, the horses at public auction to defendant for the sum of six hundred and fifty-eight dollars and fifty cents, and delivered them to defendant upon the day of the sale. Plaintiff has demanded payment of said sum, which defendant refuses to pay.

Defendant for answer denied that plaintiff was the receiver in insolvency, denied that plaintiff sold the horses as receiver, but admitted and averred that he sold them as sheriff. He admitted also his purchase of the horses at the sale, and likewise admitted that he had failed to pay the purchase price. But in this regard he alleged that, before the appointment of plaintiff as receiver, he was a judgment creditor of said James M, Smith, and had caused to be issued and placed in plaintiff's hands as sheriff for levy a writ of execution. [193]Plaintiff, as sheriff, levied upon, took into, and retained in possession the said horses under and by virtue of the writ of execution before "the insolvency proceedings of said Smith were commenced. This possession continued until after the sale. It was the lawful duty of plaintiff as sheriff to sell the horses under the writ for the benefit of defendant, and it was defendant’s right to become a purchaser at the sale, and have the proceeds of the sale applied as a payment upon his judgment.