Opinion
Fall Term, 1798.
1. If by consent a large quantity of effects are put up together, sold at one bid and purchased by the plaintiff, who concludes with the defendant to defeat the claims of the other creditors, the sale is void.
2. A purchaser at an execution sale is not affected by the irregular conduct of the officer.
Brodie had obtained a judgment against Finch, taken out execution and carried it to be levied on his effects; on the day appointed for the sale, they conversed privately together, and the goods seized were sold by the constable, all together at one bid, namely, the standing corn, household furniture, and the tobacco; and Brodie became the purchaser. It was understood at the time by those present that Brodie intended to get satisfaction out of part of the goods, and to release the residue, and in consequence of this understanding, one of the witnesses forebore to bid. All the goods purchased were, after the sale, left by Brodie in Finch's possession, who prepared the tobacco for market, and was carrying it to Virginia when another creditor, one Lees, obtained judgment against him. The execution was levied by the defendant, Seagraves, a constable, who seized the tobacco and sold it; having first offered Brodie to pay the amount of his judgment, costs, etc., out of the tobacco, which Brodie refused.
Supposing the constable to have sold in the manner here stated, of his own accord, though the sale was irregular, still the property vested in the vendee; but if he sold pursuant to an agreement between Brodie and Finch, then the unusual manner of the sale, and the setting up of all the goods at once to be disposed of, at one bid (especially in this underhand way, to make the goods sell at a great undervalue and consequently to disappoint some creditor who afterwards might have claimed satisfaction of his debt also), was an evidence of fraud which is to be collected from circumstances, and will vitiate the sale in toto.
Verdict and judgment for the defendant.
NOTE. — On the first point, see Jones v. Fulgham, 6 N.C. 364. On the other point, see Blount v. Mitchell, ante, 85, and the note thereto.
Cited: Woodley v. Gilliam, 67 N.C. 237; Davis v. Keen, 142 N.C. 504; Weir v. Weir, 196 N.C. 270.
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