The bill alleged that one Harden had obtained judgment in 1861 against one Watson, and that execution was thereupon issued and immediately levied upon a certain tract of land belonging to said Watson and returned to the next term of the court; that no other process was taken out until 1866, when a ven. ex. was placed in the hands of the defendant Murray as sheriff of Alamance, and that he sold the land thereunder to the trustee for the price of $5,000; that before such process had been placed in his hands Watson had conveyed the land in trust to secure certain creditors, who, with the trustee, were the other defendants, and also the said Murray, and that he took from the trustee and those secured (other than himself) a bond of indemnity and thereupon himself advanced the money due to Harden under the process, and suffered the trustee to retain all the purchase money; also (239) that at various terms of the court in 1859, 1860 and 1861 the complainants had severally recovered judgments (in all for nearly three thousand dollars) against said Watson, and that immediately thereafter executions had been levied upon the same land; that nothing further was done until after the above sale by the sheriff and before the return day of the process under which he had sold, when writs of ven. ex. upon each of those levies were placed in his hand, and that he returned them "To hand too late to sell." The bill charged that the defendants had combined to defeat the complainants of their rights, and asked for an account of the surplus which was in the hands of the trustee, and for general relief.
The joint answer of the defendants admitted in general the facts stated in the bill, alleging, however, that before any process in favor of the complainants had been placed in Murray's hands, a deed had been made by him to the trustee as purchaser under the process of Harden, *Page 166 and the surplus money accounted for to him; that the trustee on procuring the sheriff's deed had resold; that the purchase money was not yet due, and that he submitted to hold it under the directions of the court. The defendant Murray, who sold the land as sheriff on 19 November, 1866, made return on the several writs of venditioni exponas sued out by the plaintiffs and which came to his hands on 20 November, 1866, "To hand too late to sell," and allowed the defendant Boyd, who purchased the land at the price of $5,000, after paying off the venditioni exponas, under which it was sold, to retain the balance of the purchase money, to be applied to the discharge of certain debts set out in a deed of trust executed by Watson, the debtor, to defendant Boyd in July, 1866, taking a bond of indemnity. The bill seeks to follow this fund, and have it applied to the discharge of the debts due the plaintiffs respectively, for which the writs of venditioni exponas had issued to complete the levies made on writs offieri facias in 1861, on the ground of the fraud and collusion between the sheriff and the other defendants in the misapplication of the fund, the sheriff being one of the creditors secured in the deed of trust and taking indemnity.
The defendants object, in the first place, that the plaintiffs have mistaken their remedy, which was by rule in a court of law to compel the sheriff to bring in the money.
This remedy is cut off by the return of the sheriff, "To hand too late to sell," which would be a full answer to the rule and drive the plaintiffs to their actions for a false return.
It is settled that when an officer misapplies the fund, it may be followed in a Court of Equity and subjected to the discharge of the demands to which it was properly applicable. Bunting v. Ricks, 22 N.C. 130.
(241) It is objected, in the second place, the judgments on which the writs of venditioni exponas issued were dormant, and such writs ought not to have issued without notice to the defendant in the judgments. These writs were not void, and could only be avoided at the instance of the party against whom they issued; and the sheriff was bound to obey them.Dawson v. Shepard, 15 N.C. 497; Oxley v. Mizle, 7 N.C. 250. It is held in Smith v. Spencer, 25 N.C. 256, that notice to the debtor is not necessary. We are not called upon in this case to say whether that decision will be followed or not; for this is no application of the debtor to set aside the writs; and, at all events, there is nothing to defeat the lien created by the levy, by which the land *Page 167 was taken in custodia legis and set apart for the satisfaction of the judgments.
It is objected, in the third place, that under the ordinance of the Convention of 1866, section 5, the writs of venditioni exponas were void and issued against law. That question is fully discussed, Mardre v. Felton,61 N.C. 327; and it is held that the ordinance does not apply to writs ofvenditioni exponas, and is confined to the ordinary writs of execution when there has not been a levy.
The plaintiffs are entitled to the relief prayed for.
PER CURIAM. Decree for the plaintiffs.
(242)