Opinion
December Term, 1822.
A sheriff, having levied executions on the property of a debtor, may, by the consent of the debtor and the plaintiffs in the executions, act as the agent of the debtor and dispose of the property at private sale on credit; and a promise of payment made by the purchaser to the sheriff, as agent for the defendant, will enure to the benefit of the latter, and he may have his action thereon, because the acts of the sheriff in such case are not official but done in his individual character.
THE sheriff having in his hands writs of fi. fa. against the plaintiff, had levied them on two negroes, took the property into his possession and advertised it for sale. The creditors at whose suits the executions had issued were willing that the property might be sold on a credit, and on the day of sale the plaintiff requested some of his friends, and among others the sheriff, to assist him in finding a purchaser. The sheriff accordingly offered the negroes to the defendant for the sum of $400 at a credit of six months, and the defendant, after having seen the negroes and made inquiry into their characters, agreed to take them on those terms. It was thought necessary in order to secure to the defendant a title to the property that the sheriff should expose it to public sale, and after some bidding by others they were struck down to the defendant at the price of $230, not, however, before he had declared, in answer to a question by the sheriff, that he considered himself bound to pay $400 for them, whether his bid amounted to that sum or not. There was contradictory evidence as to the fact whether the sheriff was to receive any compensation from the plaintiff for his services. A few days after the sale, the defendant brought the negroes to the sheriff, requesting him to take them back and alleging that he was defrauded in the contract. This the sheriff declined doing, but said he would endeavor to prevail on plaintiff to take them (200) back. Plaintiff, however, refused to do so. The defendant then, by the direction of the sheriff, paid the amount of his bid, $230, and took the sheriff's bill of sale for the property, which he afterwards sold for $230. It was proved that the negroes were, at the time of sale, about 45 years of age, and that when the sheriff made the contract with defendant he distinctly informed him that he could give him no information about the negroes, but referred him to one Dunn, with whom defendant had some conversation previous to contracting. One of the negroes was sickly in appearance, the other was a remarkably good servant, but indolent. One of the witnesses, Engram, swore that he attended the sale with the view of purchasing, but on examination of the negroes declined doing so.
The present action was brought to recover the difference between the sum contracted to be paid and the amount of the bid.
On the trial below, the presiding judge instructed the jury that, unless the plaintiff was guilty of a fraudulent misrepresentation or concealment, the contract made by the sheriff as his agent was a valid one on which he was entitled to recover, notwithstanding the levy, public sale, the payment of the sum bid by defendant, and the sheriff's bill of sale. With regard to the fraud alleged by defendant, the law required of every man in making a bargain to use that precaution which a prudent and diligent man should do; and if, in consequence of not using such precaution, the defendant was imposed on, it was his misfortune or his fault, and he was without remedy. One of the negroes was only indolent, and this was not a defect which diminished her value, because it might be remedied by correction. That if there was a latent defect not communicated, and not discoverable by the precaution which the defendant, as a prudent and diligent man, ought to have used, this (201) circumstances should diminish the amount of plaintiff's recovery, but could not entirely defeat it.
A verdict was rendered for the plaintiff, and defendant moved for a new trial; the motion was overruled and judgment rendered pursuant to the verdict; whereupon the defendant appealed to this Court.
Gaston for appellant.
Mordecai for appellee.
In the investigation of this case upon its own merits and (202) circumstances there is no danger of violating any principle or rule of sound policy, because what was done was by the consent of all parties concerned — not only by the consent of the parties to this suit, but by consent of the plaintiffs in the executions under which the property purchased by the defendant was sold. The legal progress of the executions was suspended by the consent of all parties concerned, and what the sheriff then did was not in his official capacity as sheriff, but in his individual character.
I see nothing objectionable in the charge of the court. The defendant made no inquiry of the plaintiff relative to the condition of the negroes, nor did he examine them as he might have done. It seems that the witness Engram learned their condition from an examination of them. I think the rule for a new trial should be discharged.
The recovery in this case is resisted on several grounds, one of which is that the promise to pay the price of the slaves was made to the sheriff; that the property was vested in him and divested out of Jones by the seizure on the execution. But, because the sheriff may (203) bring trespass or trover for the property, it does not necessarily follow that all title is taken from Jones; for the same actions may be brought by a carrier against a stranger who takes the property out of his possession, or by a factor, pawnee, or other person having a special property, each of whom is answerable for it to the person having the general property. In like manner, as the sheriff is answerable to the plaintiff in the action for the value of the goods seized, and as the defendant is discharged from the judgment and execution if goods are taken to the amount of the debt, it is essential of the safety of the sheriff that he should be armed with the means of protecting the property in his possession. Nevertheless whatever remains after the debt is paid belongs to the defendant in the action, who may recover it from the sheriff if it is received by him. Therefore, upon a sale by the sheriff the consideration moves from him to the amount of the sum which he is commanded to raise; but for the surplus the consideration moves from the defendant in the execution, and consequently a promise made to the sheriff as agent for the defendant in the execution will enure to the benefit of the latter. The custom of selling property at auction which is taken in execution, sanctioned as it is by usage, and I believe by some judicial decisions, is in general the safest way for all parties, as well as the most likely one to guard against abuses. But when, by the assent of all who are interested in the property, an arrangement can be made to prevent its sacrifice and insure a sale for something like the proper value, while there is no rule of law or principle of policy forbidding such a course, it is strongly recommended by justice and humanity; and its evident effect in this very case has been beneficial both to creditor and debtor.
As to the objection arising from the imperfection of the slaves, (204) there was neither a warranty or a fraudulent concealment; and even a warranty is not binding where the defect is obvious, as in the case of a horse with a visible defect, and of a house without roof or windows warranted as if in perfect repair. Here the unhealthiness of the man was visible in his appearance, and with respect to the indolence of the other slave the purchaser might have made the necessary inquiries. I will not say that the concealment of some great moral defect may not be fraudulent in the seller, but such an instance does not occur in this case. The verdict and judgment appear to be right.
HENDERSON, J., concurred.
PER CURIAM. No error.