| Pa. | Mar 21, 1853
The opinion of the Court was delivered, by
This was replevin for three cows, which had been levied and sold as the plaintiff’s property, under a warrant for school tax. The defendant was the crier of the constable’s sale, and knocked off the three cows in dispute, to himself. The judge was requested to say, that the sale was illegal and void, and that the plaintiff might treat it as a nullity, and recover in this action. His refusal to do so is the exception here.
A constable can buy property at his own sale no more than any other person charged with the execution of a trust or a duty inconsistent with the interest of a purchaser. If he delegates his power to another, the deputy stands in the shoes of his principal. But where the constable superintends the sale himself, and employs a crier merely as his mouth-piece, there is nothing to prevent the latter from bidding.
This sale was an honest one. The jury found it so. It is impugned only on the ground that the crier stood in such a relation to the business that he could not lawfully purchase. If this were true, it would not be void but only voidable, and the owner of the goods could have no advantage of the illegality, except by claiming a resale, or by demanding the property after a tender of the purchase-money. Where there is no fraud in fact, the person who has in good faith made a purchase which violates a rule of policy, is not to be punished by losing more than the advantage of the bargain; he does not lose both the property and the money he paid for it. The price of these goods went to satisfy the plaintiff’s debt; and if the purchaser had been a trustee for the sale of them, the plaintiff could not have them back again while the proceeds were applied to his benefit, without refunding them.
Judgment affirmed.