Opinion
June Term, 1853.
1. Where a sheriff sells lands under several executions, and the sale is rightful under one, though unlawful under the others, the purchaser acquires a good title.
2. A sheriff having in his hands several executions against A. levied upon lands and other property for their satisfaction. One of these executions had been assigned to indemnify the sheriff and two others against loss as sureties of A., and it was agreed between the sheriff and his cosureties, that one of them should bid off the property, if it should sell low, for their common benefit; under this agreement the land was bought: Held, that the agreement was not fraudulent, or otherwise unlawful, and did not vitiate the sale.
(The cases of Seawell v. Bank of Cape Fear, 14 N.C. 279; Cherry v. Woolard, 23 N.C. 438; Hattan v. Dew, 7 N.C. 260; Smith v. Kelly, ibid., 507; Blount v. Davis, 13 N.C. 19, and Smith v. Greenlee, ibid., 126, cited and approved.)
THIS was an action of ejectment, tried at Spring Term, 1853, of PASQUOTANK Superior Court, before Saunders, J.
Pool for plaintiff.
Heath, Hines and W. N. H. Smith for defendants.
On the trial, it was proved that the lessor of the plaintiff was the owner of the land described in the declaration, on 21 November, 1843. That upon sundry judgments, some of which were against the lessor alone, some against him in conjunction with one Joseph Commander and other persons, executions issued to Job Carver, the sheriff of said county, and by virtue of them he sold the interest of the lessor of the plaintiff and said Commander in the said land, at public sale, on the premises, to one John J. Grandy, who afterwards assigned his bid to one Joseph H. Pool; and that the sheriff, by his deed the same day conveyed the premises to said Pool. It was further shown that all the parties to said executions, except three, were residents of Pasquotank County.
It was proved by the said John J. Grandy, that he, the said Carver and one Kinney were cosureties for one Joshua A. Pool, and (353) that to indemnify them, the said Joshua had assigned an execution issued upon a judgment recovered by him against the said Joseph Commander alone, to one Ehringhaus, in trust for said Grandy, Carver, and Kinney, and that said execution, as well as the others, was in the sheriff's hands at the time of said sale. He further proved, that before the sale, it was agreed between himself, the said Carver and Kinney, that if the property which the sheriff was to sell, and which consisted of other property as well as this now in controversy, sold low, he was to bid it off for the joint benefit of himself and the other sureties, and that it was to be left to his judgment what price he should give. That the property sold low, and he accordingly bid off this in dispute, being the last and highest bidder, and that shortly after, with the consent of said Carver, he assigned his bid to said Joseph H. Pool, upon his paying the execution against said Commander, and directed the sheriff's deed to be made to him; that he did not communicate any of the facts stated above to said Joseph Pool, nor was the latter, as far as witness knows, informed of the arrangement about his bidding off the property.
The defendants deduced title from the said Joseph H. Pool; they also gave in evidence a private act of Assembly, passed in the year 1823, the material contents of which appear in the opinion of the Court.
The plaintiff contended that the sale made by the sheriff was void; (1) because some of the plaintiffs in the executions under which the premises were sold were not residents of the county of Pasquotank, and the private act of 1823 expressly excepts the case where either the plaintiffs or defendants are not residents of the county; (2) because of the combination and arrangement between Grandy and the sheriff, by which the sheriff was interested in the purchase made by Grandy. As to the knowledge of Pool of the arrangement between Grandy and the sheriff, the plaintiff insisted it was a fact to be submitted to the jury. His Honor declined submitting that matter to the jury, and reserving the questions of law, directed a verdict to be entered for the plaintiff, subject to the opinion of the court upon the points reserved. Subsequently, he directed the verdict to be set aside, and a judgment of nonsuit to be entered. The plaintiff moved for a new trial, and failing to obtain it, appealed to the Supreme Court. (354)
The plaintiff rests his right of recovery on two grounds. The first is, that under the private act of 1823, the sale by the sheriff was void because made on the premises; and secondly, it was void because of the agreement entered into between the sheriff and the other parties to it.
By the common law, no place is designated where a sale shall be made of lands, as they were not the subject of sale under execution. The act of 1777 makes them liable, but points out no place of sale, nor time, except the notice directed. The act of 1794 directs at what hours sales under execution shall commence. These were all the statutory provisions on the subject in this State until 1820, when the Legislature directed all sales of land to be at the courthouse of the respective counties. The act of 1821 altered the day of sale, and that of 1822 altered the time, but not the place, to the Monday of each county court. Thus stood the law under the acts of 1820-'21-'22. The sales were to be made at the courthouse. At their session in 1823, they passed a local act, chapter 45, section 10, whereby several counties, among which was Pasquotank, were withdrawn from the operation of the act of 1822, and expressly repealing the act of 1820 and '21, so far as those counties are concerned as to the place of sale.
This left the sales of land under execution in those counties as at common law. The first proviso of the act of 1823 is the one under which the plaintiff, as to this objection, rests his case. It is in these words: "Provided, that this repeal shall not affect the cases where either of the parties in the execution are not residents in the county so exempted by this act." In other words, the act shall only apply to cases where both the plaintiff and defendant are residents of the county of Pasquotank, and not to those cases where either party is a nonresident. The citizens of Pasquotank did not wish the sale of land under execution in that county to be at the courthouse, but upon the premises. (355) The Legislature, however, says, as to your own citizens, when they are alone concerned as plaintiffs and defendants, the sale shall be on the premises; but when those who are not residents, either plaintiffs or defendants, the sale shall be at the courthouse. Several executions had issued against the lessor of the plaintiff in this case who was a resident of the county of Pasquotank. In some, he was the sole defendant, in another, he and one Commander were defendants. In the case where the present plaintiff was the sole defendant, the plaintiff was John C. Ehringhaus, cashier; both these parties were residents of the county of Pasquotank, and the execution was in the hands of the sheriff at the time of the sale, and the sale was made under it as well as the others. But it is alleged that in some of the executions Benjamin C. Pritchard and B. F. Jackson and William Jones, who were parties plaintiffs, were not residents of the county of Pasquotank, and therefore the sale is void. In truth, the act of 1823 repeals the acts of 1820-'21, and '22, making the courthouse the proper place of sale, and leaves it, so far as the county of Pasquotank is concerned, as at common law, where the sheriff in good faith shall deem it best for all parties. The act of 1820 first designated the courthouse as the proper place for such sale. The acts of 1821 and '22 only altering the day of sale. Grandy v. Morris, 28 N.C. 433. But if it be admitted that under the act of 1823, the sale under the executions in favor of nonresidents is still, in Pasquotank, to be made at the courthouse, it does not affect the question presented to us under these proceedings. Here the sale was made by the sheriff under all the executions — and if one of them authorized the sale as made, it is valid, and the purchaser acquires a good title. A misrecital in the deed from the sheriff, meeting a wrong execution, does not invalidate the sale, if he had in his possession at the time of sale, one which did authorize him to act. Seawell v. Bank of Cape Fear, 14 N.C. 279; Cherry v. Woolard, 23 N.C. 438; Hatton and wife v. Dew, 7 N.C. 260.
It is further objected by the plaintiff, that the sheriff's deed to Pool conveyed no title to him, as he did not purchase the land at the sale, but it was bid off by one John J. Grandy. The case discloses that Grandy transferred his bid to Pool. This he had a right to do, and the deed was properly made to Joseph H. Pool. Smith v. (356) Kelly, 7 N.C. 507; Blount v. Davis, 13 N.C. 19.
It is further insisted by the plaintiff, that the sale was void by reason of the fraud and combination between the sheriff and Grandy and others. It is very certain that any fraud or combination between a sheriff and a purchaser which affects the sale will vitiate it. There was here no combination to purchase this land. The land with other property of a personal nature, was levied on to satisfy the executions; among them was one in favor of Joshua A. Pool against Commander, which he assigned to the three individuals who entered into the agreement, and who were his sureties, to indemnify and secure them against loss as such sureties. The agreement was, that if the property sold low, Grandy, one of the sureties, should bid it off for the joint benefit of himself and the others. Grandy became the purchaser of the land in question, being the highest bidder, and the land going low, and afterwards assigned his bid to Joseph H. Pool, with the consent of the other sureties, upon his agreeing to pay the execution against Commander. The witness did not communicate to Joseph H. Pool the existence of the arrangement made between the sureties, nor is there any evidence it was communicated to him by any other person before he purchased. We do not, however, in the agreement itself, see anything that was fraudulent. In all public sales, whether made by a private individual as an auctioneer, or by an officer of the law as a sheriff under an execution, the object is to secure to the person whose property is sold, a fair price, and to the creditor satisfaction of his debt. Puffing or by-bidding is a fraud on the vendee, as it has the effect of enhancing the price upon him, and any agreement not to bid, made for the purpose of paralyzing competition, is a fraud on the vendor, and vitiates the sale. Smith v. Greenlee, 13 N.C. 126. But the rule does not extend so far as to prevent several individuals from uniting in their biddings from any other cause or motive. Judge Henderson, in Greenlee's case above, in commenting upon the principle of persons entering into combinations at public sales, says, the rule is confined to agreements which have such objects in view. There is not the slightest pretense that any such intention was entertained by the parties to this agreement, nor was any such effect produced. It was not an agreement not to bid against each other, but it was (357) an agreement made by cosureties that one of their number should purchase property at the sale, with a view to save themselves; that they could do so only by getting the property low; for if they paid as much for it as upon a resale, they could get, they would be precisely where they were, or indeed worse off — what they bid would have to be paid immediately, and it might be some time before they could effect a resale. Nor can the sheriff's being one of the parties to the agreement alter the principle. He was one of the cosureties, and had as much right as any of the others to secure himself, if he could do so without injury to the plaintiff or defendant in the execution. That the parties to the agreement acted in good faith, and with no fraudulent design to make to themselves any unfair advantage in their purchase, when the bid was transferred to Joseph H. Pool, it was a part of his agreement with them, that he should pay off the execution against Commander, so as to free him from any claim they had as the owners of it.
The ground upon which our opinion is placed, renders it unnecessary to notice the refusal of the judge to submit to the jury, the question of bona fides in Pool when he purchased the bid.
PER CURIAM. Judgment affirmed.
Cited: Davis v. Keen, 142 N.C. 504; Manning v. R. R., 188 N.C. 664; Johnson v. Pittman, 194 N.C. 301; Weir v. Weir, 196 N.C. 270.