Bank of Rome v. Mott — 17 Wend. 554

Majority

p. 312

Bank of Rome vs. Mott.

Headnote

Where a sheriff so negligently conducts himself in respect to personal property levied upon by him that it is lost, and the execution is satisfied out of the real estate of the defendant, whereby the lien of subsequent mortgage creditors upon the real estate of the defendant in the execution is reduced to the amount of the personal property lost, yet no action lies by such mortgage creditors against the sheriff for such malfeazaiire, unless the conduct of the sheriff be explicitly charged to have beenfraudulent and with the intent to diminish the security of the mortgage creditors.

Demurrer to declaration. The plaintiffs declared against the defendant as late sheriff of the county of Oneida, incase, stating that they were [555] the holders, by assignment, of two judgments against one Robert McBride, rendered previous to the 25i/t Oct., 1833, amounting together to the sum of $1054, and that they were the holders of certain mortgages, executed by McBride upon his real estate, previous to the 2d November, 1834, amounting together to the sum of $15,600; that on the 25th October, 1833, the Bank of Utica obtained a judgment against McBride for $853,99, oil which an execution was issued and delivered to the defendant as sheriff of Oneida, on the 2d November, 1834, by virtue of which he levied upon goods and chattels, the property of McBride, of a value more than sufficient to satisfy the execution, but left the same, ora part thereof, in the custody of McBride; that the defendant well knowing the premises, so negligently and carelessly kept the property levied upon by him, that a large quantity thereof, of the value of $1000, by and through his mere negligence and carelessness, became and was wholly removed, lost and destroyed, whereby the judgment in favor of the Bank of Utica became and was a valid charge and lien upon ihe real estate of McBride, and in consequence thereof the liens of the plaintiffs upon such real estate were reduced, and they thereby lost the sum of $1000 The above is the substance of the first count of the declaration; the second count, after stating the same facts as in the first, charged that the defendant collusively and fraudulently disposed of the goods and chattels levied upon by him for a small and grossly inadequate sum, to wit, for the sum of $4.,0, whereby, &c. The third count charged that the defendant sold the goods and chattels levied upon by him for a grossly inadequate price, to wit, for $400; that the purchaser neglected to pay the purchase money; that the defendant was requested by the Bank of Utica to advertise and sell anew, which he

p. 313

neglected to do, and collusively and fraudulently permitted the purchaser to retain possession of the goods. To this declaration the defendant interposed a general demurrer, which was argued by

J. A. Spencer, for the defendant.

W. C. Noyes & C. P. Kirkland, for the plaintiffs.

By the Court,

The short of the declaration is, that the [556] Bank of Utica «had a judgment against McBride, which bound his lands; that the plaintiffs held junior mortgages against McBride, which bound tile same lands; that the defendant, as sheriff, in executing a ji.fa., issued at the suit of the Bank of Utica, so negligently managed the personal property of McBride, that it did not bring its full value by 1000 dollars, so that this sum came in upon the mortgaged land and other lands, and took so much out of the plaintiff’s pocket. It is clear that such an action will not lie. The acts of negligence were in executing the ji.fa. of the Bank of Utica, who alone could sue for the negligence. That bank being satisfied, no other corporation or person can enforce any other claim upon the sheriff, unless it be McBride, the original defendant. He might, perhaps, complain of the sacrafice of his property. Before a party can bring an action for negligence, he must show a legal duty to himself. It is not enough that in the careless discharge of his duty to one, the sheriff’s negligence may glance off and indirectly and remotely work an injury to another. Every man who wrongfully subtracts from the substance of my debtor, against whose property I have a lien, may thus disable him from paying me, and let in senior liens. Knowing of my claim and the senior claims, he thus does me an injury. Yet I have no title to an action against him. My debtor alone can bring the suit. If this action be maintainable, every creditor of McBride, of whose debt the sheriff was aware, might, for aught I see, sue him; and if the plaintiff could persuade a jury to believe that by his misconduct, McBride was rendered less able to pay, recover. The law can not, in such cases, look beyond the proximate mischief resulting to a vested right, and do more than redress that mischief at the suit of the person immediately wronged.

Such is the obvious objection to thL action as resting on general principles. There is some difference of words in the several counts. The second count charges the mischief to have been done by the sheriff fraudulently and collusively. Whom he was seeking by such conduct to defraud, [557] we are not told. We must intend that, if anybody, it was either the Bank of Utica or McBride, probably, however, there can be no intendment in the case. The words are merely formal or of course, and mean nothing. I am not disposed to deny, that collusion and fraud with intent to do this mischief to the plaintiffs, might be redressed by an action. It would be like any other fraudulent act, with the purpose of diminishing the value of a mortgage security, or a lien by judgment (Yates v. Joice. 11 Johns. R. 136, 140, and the cases there cited). But surely, to carry the acts here imputed beyond their natural and legal consequences, the object of the fraud should be explicitly pointed out. It is the very gravamen; the material point of the issue, the vital principle of such an action (Lane v. Hitchcock, 14 Johns. R. 213, 214, 215).

Judgment for the defendant.