Opinion
(December Term, 1834.)
Where the defendant in an execution, fraudulently induces the sheriff to sell unsound property of his, and at the sale fraudulently represents it to be sound, an action for a deceit lies against him by the purchaser.
THIS was an action for a deceit in the sale of a negro, tried before his honor Judge MARTIN, at Burke, on the last Circuit.
The sheriff of Burke had levied sundry executions against the defendant, on several negroes, and taken bond for their forthcoming on the day of sale. The negroes levied upon, were not produced at the sale, but the defendant substituted another, which the sheriff accepted, and sold to the plaintiff. At the sale, the defendant stood by, and publicly recommended the negro as an intelligent boy. It was proved that the boy was an idiot, and that the defendant knew it. It was objected for the defendant, that the plaintiff could not recover, because he who purchases at a sheriff's sale, purchases at his own risk, and it was his folly to listen to the recommendation of the defendant; that there could be no implied warranty as to title, the sheriff being between the plaintiff and defendant. His honor charged the jury, that if a defendant in an execution is merely passive while a sheriff levies upon and sells his property under process, he is not liable in an action of deceit, though the property be defective and he knew it, and failed to disclose it at the sale. But that, if, with a fraudulent intent, he substituted, or caused the officer to take, unsound in the place of sound property; and if in pursuance of such fraudulent intent, he stood by at the sale and made false representations about the soundness of the property, whereby a purchaser was defrauded, such purchaser could recover in an action of deceit. The rule being, that where an intent to commit a fraud, is accompanied by an overt act, whereby the fraud is complete, the fraudulent actor is liable in an action of deceit, although the deception is effected by the unwilling instrumentality of another.
The jury found a verdict for the plaintiff and the defendant appealed.
No counsel appeared for either party.
— We have attentively examined this case; and are of opinion that the law was correctly laid down by the Judge in his charge, and for the reasons there given, the judgment must be affirmed.
PER CURIAM. Judgment affirmed.