(dissenting). The following undisputed facts appear in this case: P. D. Kinyon borrowed $10,313 from "William Gaddis and Fletcher Maddox, for which he gave two notes on the 9th of July, 1886 — one to Gaddis for $3,000, and another to Maddox for $7,313 — and on the same day executed a chattel mortgage on a herd of horses, to secure the payment of the notes, and stipulated therein that upon default in the payment the sheriff was empowered to take possession and sell the mortgaged property after five days’ advertisement, either at private or public sale, and apply the proceeds to the payment of the mortgaged debt. . Default having been made, the two creditors placed the mortgage in the hands of their attorney, who delivered it to the sheriff, William Rader, with the following indorsement thereon: “To the sheriff of Meagher County, Montana Territory: You are hereby authorized to execute the power of sale contained in certain chattel mortgage, of which within is a true copy. Fletcher Maddox and William Gaddis, by N. B. Smith, their agent and attorney.” Under this order the sheriff took possession of several hundred head of horses, and advertised them for sale on the 30th of August, 1887. At *139this sale, which was attended by the creditors’ attorney, a man by the name of Kier bid off about $1,100 worth of horses, when the sheriff refused to cry his bids any longer. Kier replied that he wished to purchase to the extent of several thousand dollars; that he had $2,000 in bank which he would place in the hands of the sheriff, and also leave any stock which he might purchase in the sheriff’s possession until he should pay the balance of the purchase money, which he could readily do in five days. If he failed to comply with his bid the money and horses should be forfeited to the mortgagees. The sheriff referred the matter to the mortgagees’ attorney, who, after some discussion, directed the sheriff to proceed with the sale, which was accordingly done. On that occasion Kier continued his bids, and on the day following he was represented by his attorney, one Waterman, who, under a written power from Kier, bid off $1,600 worth of horses for him, making his bid reach about $8,096.50. On inquiry at the bank it was found that Kier did not have more than $1,752, but this was turned over to the sheriff on the second day of the sale, which lasted for five days. Mr. Waterman’s bids were on the fifth day, and before they were received by the sheriff he displayed his written power, and again the matter was referred to the creditors’ attorney, who, upon being shown that the amount of money already in the sheriff’s hands was sufficient to cover any loss and expenses from a resale of the property, said to the sheriff: “It is all right, and you can go ahead with the sale;” and thereupon Waterman made the purchases referred to. Kier’s purchases in the aggregate amounted to $8,096.50, and thereafter, the mortgagor having paid the difference between the bids of Kier and the debt and costs, the sheriff released the rest of the mortgaged property. The horses purchased by Kier (142 in number) with the $1,752, remained in the sheriff’s hands. Kier failed to comply with his bid, and the sheriff, after paying costs and attorney’s fees, apportioned the money in hand between the two creditors; that is, $3,192.93 to Maddox, and $1,591.57 to Gaddis; and also tendered the horses, 142 head, to the mortgagees, who received the money but refused to take the horses, and failed to direct what disposition was to be made of them. Subsequently the sheriff sold 23 head of horses at private sale *140for $1,275, from which he deducted costs of herding, breeding, and keeping the same, and tenders the balance, with the horses, if plaintiffs will accept.
Upon this state of facts Maddox instituted suit against the sheriff and his bondsmen, alleging that the sheriff had sold the property for enough to satisfy all claims, and that, after demand, he had failed to pay over the same; wherefore he prayed for a judgment solidarity against both the sheriff and his bondsmen for the balance due him, to wit, $5,314.69, with interest. As the sheriff’s official bond is only for $5,000, Gaddis intervened in this suit, and prayed for a like judgment up to the amount due him, to wit, $1,927.18, and that the sum due and recovered on the official bond might be apportioned between the two mortgagees. The sheriff and his bondsmen, in whose custody he placed the horses after the refusal of the plaintiff either to accept or direct what disposition should be made of them, answered, setting up all of the foregoing facts, and again tendering the horses, and setting forth the sale by the sheriff of some 23 head at $1,275, which they also tendered, less the cost of herding, breeding, and keeping, if the creditors will accept. They further aver that the horses are subject to the order and disposal of the creditors.
The demurrer of defendant to the complaints of plaintiff and intervenor is not well taken. Each states a cause of action, and I entertain no doubt of the liability of the sheriff and his bondsmen for any failure to perform his duties. As the sheriff of the county he could not have refused to execute the power of sale at the request of the creditors; and if he neglected to perform the duties incumbent upon him as sheriff, his bondsmen must respond for any damage sustained by either his misfeasance or malfeasance in office, and therefore I think the judge a quo correctly overruled the demurrer.
This is a suit against the sheriff for damages in failing to pay over funds; and when Gaddis filed his intervention the plaintiff moved to dismiss the same by striking it from the files, as not stating a cause of action; but the judge a quo overruled the same, and upon final trial he gave judgment for the full sum prayed for, and distributing the amount between the plaintiff and intervenor. There is a bill of exceptions to this ruling *141taken by tbe plaintiff, but there is no notice of appeal : r bond on his part, and consequently we cannot consider the issues between them. Neither plaintiff nor intervenor have appealed from the judgment or order, and therefore they are respondents, while the defendants, who are appellants, are not concerned; nor do they complain of the status of the case as between the plaintiff and intervenor. As between co-respondents or appellees there can be no change in a judgment. To have this court review an order or final judgment as between intervenor and plaintiff the matter complained of must be brought before us by an appeal of one or the other. I therefore think the questions raised by the motion to dismiss the intervention cannot be heard in this court.
The facts which I have detailed in support of this opinion were all elicited from witnesses upon the trial of this case. They were incontestably established by the defense, and no effort was made to rebut them; but upon motion all' the testimony and evidence upon the part of the defendants was striken from the record, and straightway a judgment was entered against the sheriff and his bondsmen in solido, and for an amount in excess of the sum for which the sureties had bound themselves. So far as the seizing creditor is concerned, the sheriff is the creature of instructions; and when he had received his authority from the mortgagees, either personally or through their agent or attorney, he was to obey all instructions concerning the execution of the writs from them or their attorney, and which did not conflict with the rights of the defendant. I assimilate the proceedings to sell the mortgaged property through the sheriff to sales by auctioneers. It is too clear to admit of discussion that the power of a sheriff to sell does not empower him to either sell on credit or upon conditions or contingencies; and it is equally beyond discussion that an attorney at law must have express authority to create a debt or buy property. But as the sheriff, in making the sale, is under the control of the creditors, or their attorney present, I have no doubt but that it was the sheriff’s place to receive and cry the bids of Kier when so instructed by the creditors’ attorney; and in view of his employment and profession I do not think that he required any express authority to direct the sheriff to cry what he considered a good bid. The record does *142not show that there were any other bidders at the sale than Kier; and I conclude from the circumstances that the attorney for the creditors thought that it was advantageous to his clients to allow Kier to bid, for the horses still remained in the hands of the sheriff, and the $1,752 deposited with him was considered by the attorney as sufficient to cover the expenses and damages resulting from a resale in case Kier did not comply with his bid, or his clients declined to take the horses. The sheriff is not the guarantor of any one who bids at a sale made by him. If the purchaser declines or fails to comply with his bid, although perfectly solvent, the creditor may have the property resold, and demand the difference from the purchaser, or he may continue the sale of the debtor’s property. So we may leave out of view any question of authority to receive the bids made by Kier. The case was one where the purchaser had either neglected or refused to comply with his bid by paying the purchase price. The property was not his until he complied with the terms of the bid, and until he did so it remained the property of the mortgagor. It was not the property of the sheriff, nor did it become that of the creditors, because they had repudiated the agreement of their attorney.
It became the duty of the sheriff, acting as the auctioneer of the plaintiffs, to notify them of the refusal of the purchaser to comply with his bid, and when he did so, and the mortgagees refused to ratify the acts of their attorney by taking the property as their own, they should have directed the sheriff to resell it, and if it had failed to bring the original purchase price, or enough to satisfy the mortgages, they might continue to sell the mortgaged property. It is obvious that they have been in fault in this respect. The horses bid off by Kier do not belong either to them or to the sheriff, but to the mortgage debtor. And the failure of Kier did not obligate the sheriff in any way to pay his bid, any more than it would be obligatory on the sheriff to pay the bids of a purchaser at a sheriff’s sale under execution. In this respect there is no fraud charged against the sheriff either by the plaintiff or intervenor. If any one is to blame it is the attorney of the creditors, who, by his repeated directions to the sheriff to proceed with the sale, held himself out as properly empowered by his clients to act in this matter. His clients *143might very well decline to become the purchasers of the horses upon the failure of Kier to pay for them, but they cannot escape from the act of their attorney in directing the sheriff to receive Kier’s bids. When they did so they should have directed the sheriff to resell the property. The fact that the sheriff released the other mortgaged property after the payment of the difference between Kier’s purchase and the amount due, did not have the effect of extinguishing the mortgage or Kinyon’s liability. It is the latter’s obligation to pay the debt, and if the property in the sheriff’s hands is not sufficient, upon a resale of the same, the mortgaged property must pay the balance, and, in default, Kinyon personally. It is not true that Kier paid the $1,752 to the sheriff to cover the amount of his first bid, but the evidence is precise and explicit that he paid the sum after his conversations and understanding with the plaintiff’s attorney, present at the sale, to cover any damage and expense which might be occasioned should he fail to pay the rest of his bid within five days.
The case of the plaintiff was completely destroyed by the defendant’s evidence at the time of the filing of the motion to strike out. The plaintiff sued the sheriff for failure to pay over proceeds arising from the sale, while the evidence shows that all the money received from the sale had been paid over, and that the purchaser, Kier, had never complied with his bid, bat that the property was still in the sheriff’s hands. The inter-venor’s case should also fail because of the same facts, and the additional fact of the defendant’s tender of the property which it is claimed that the sheriff has converted. After their attorney had refused emphatically to receive the horses, but demanded the cash, it was a vain and useless thing for the sheriff to continue his tender of the property. Tender is only a protection to one who owes a debt; and what the sheriff terms a “tender” was merely a notice that the property was in his hands, subject to the creditors’ orders, for he did not owe the debt. .It would be most inequitable to allow the creditors a judgment against the sheriff for the value of horses which he never bought, and holds subject to the order or disposition of the mortgagees.
A thorough examination of the record impresses me with the honesty of the sheriff throughout the entire transaction, and *144his constant effort to serve the creditors and collect the debt. The rights of the creditors were never impaired or injured up to the institution of this suit, and the only possible cause of eomplaint which they ever had was the failure of the sheriff to re-ad vertise the property bid off by Kier. But when I consider that the horses and the money were tendered to the mortgagees, and that neither of them, nor their attorney, requested or directed a resale, even this cause of action falls to the ground. Perhaps upon a resale of this property it might bring enough ' to pay the debt. The duty of courts is to do justice between parties, but how could that be done in this instance by giving á judgment against the sheriff? This is a proceeding against him in the nature of damages for failure to do his duty, and if he should satisfy the judgment rendered by the District Court he would not own the horses, nor would he be subrogated to the rights of the mortgagees. To my' mind it is plain that the sheriff has not neglected any official duty; that he has paid over all the money collected at the sale; that he is not liable for the failure of Kier to pay his bid ; and if the plaintiff and intervenor have not collected their debt from Kinyon, it is their own fault, in not directing the resale of the property purchased by Kier. I conclude that there is neither law nor equity in the creditors’ demands; that the striking out of the defendants’ evidence was erroneous, and the judgment for plaintiff and inter-venor on motion should be reserved, reserving to the plaintiff and intervenor their right to resell the horses bid off by Kier, and also their rights against the sheriff for any damages which may accrue to them for his failure to produce the same, or account for the proceeds of those horses he may have sold since the sale, September 5,1887. For whatever damages the sheriff may occasion by his acts he is respousiblé personally, but his sureties are only bound to the extent of the amount named in their bond, and therefore the judgment is erroneous in condemning the sureties to pay any sum in excess' of $5,000, the penalty named in'the bond. For these reasons I dissent from the opinion of the majority of the court in this case.