This is an action brought by R. H. Fife, late sheriff of Allegheny county, against P. R. Bohlen, to recover the difference between the sum at which certain real estate was struck down to the defendant at a sheriff’s sale, and the price which the property brought on a resale made in consequence of his alleged-default. The action was commenced more than two years after Fife’s official term as sheriff expired, and this, it is claimed, is an obstacle to the maintenance of the suit. But it cannot be doubted that an ex-sheriff may sustain such action, especially in a case like the present, where he sues for the use of lien creditors of the defendant in the execution under which lie made the sales in question. Nor is there any Pennsylvania statute which limits the bringing of such action to two years after the expiration of the sheriff’s official term. Such effect is not
The defendant is a citizen of the state of Tennessee, and was not within the Western district of Pennsylvania at the institution of the action, which was commenced by writ of foreign attachment; but the defendant voluntarily entered a general appearance and pleaded to the merits, and therefore it was too late for him at the trial to question the jurisdiction of the court over him. Toland v. Sprague, 12 Pet. 300.
The sheriff’s return, while prima facie evidence in this action against the defendant, is not conclusive upon him, (Hyskill v. Givin, 7 Serg. & R. 368; 1 Whart. Ev. § 833a;) and hence we are at liberty to consider the facts dehors the return found by the court. The defendant did not personally bid; but Archibald Blakeley, Esq., assuming to act in his behalf, made the bid in the defendant’s name, upon which the sheriff knocked down the property to him. In so doing, Mr. Blakeley acted under a serious misapprehension. Forgetting that a judgment of a date anterior to a mortgage the defendant held against the property, although unsatisfied of record, had in fact been paid to Mr. Blakeley himself, he made the bid, supposing that the sale would divest the mortgage. But that judgment being satisfied in fact, and the sale being on a lien junior to the mortgage, the purchaser took subject to the mortgage. Hence, while Mr. Blakeley’s bid was $7,500, that made by Mr. Patterson, the purchaser at the resale, was $50 only.
Now, whether or not the mistake of fact, under which the bid here was made, would of itself be an available defense to this action, it is. not necessary to determine; for, as it seems to me, there lies back of that mistake a complete defense in Mr. Blakeley’s want of authority to bid at all for the defendant. His only warrant was the letter of attorney under which he assumed to act. By that instrument he was constituted the defendant’s attorney to collect debts, and commence and prosecute suits therefor, and to appear for the defendant in, and defend against, all actions at law or in equity, or otherwise, which might bo brought affecting in anywd.se his property and rights. Surely, the purchase of real estate was not within the scope of these designated powers. Besides, in this particular transaction, Mr. Blake-ley was neither prosecuting nor defending any action in behalf of this defendant. Bohlen was a stranger to the execution in the hands of the sheriff, and the sheriff’s sale did not in any manner concern him, or affect his rights as mortgagee. But had the effect of the sheriff’s sale been to divest the lien of the mortgage, and turn the defendant over to the proceeds of sale, still Mr. Blakeley would have lacked authority to bind him by bidding in his name on the property. The powers conferred upon Mr. Blakeley were not those of a general agent, but, at the most, were such only as ordinarily appertain to the relationship of attorney and client. Now, while an attorney at law has
Is the defendant estopped from defending here by reason of the proceedings in respect to these sheriff’s sales which Mr. Blakeley instituted and conducted in the court of common pleas? Upon the erroneous assumption that he had authority to bid for Bohlen, and, it would seem, still possessed with the idea that the Bohlen mortgage had been divested by the sheriff’s sale, and hence that Bohlen was entitled to a special return as a lien-creditor purchaser, Mr. Blakeley, upon his own affidavit, obtained a rule in the court of common pleas to show cause why the second sale should not be set aside. That rule the court, after a hearing, discharged. How does any estoppel hence arise ? It is said in Aspden v. Nixon, 4 How. 467, that the essential conditions of an estoppel from a res judicata are that the judgment or decree relied on must have been made by a court of competent jurisdiction, upon the same subject-matter, between the same parties, for the same purpose. It must appear on the face of the record, or be shown by extrinsic evidence, that the precise 'question was raised and determined in the former suit. Russell v. Place, 94 U. S. 606.
Now, this latter condition is not fulfilled here, even if it be conceded that the other elements of an estoppel exist.. The question of the defendant’s liability upon the bid made in his name by Mr. Blake-ley was not before the court. The application was not to set aside the first sale, or to relieve the bidder at that sale, but it was to set aside the sale to Mr. Patterson. In refusing the application, the court merely held that the second sale was regular, and that no good reason appeared for disturbing it. Beyond this there was nothing decided. And when the rule to show cause was discharged, the case stood precisely as it did before the rule was granted.
Upon the facts found, I am of the opinion that the plaintiff is not entitled to recover; and, accordingly, the court finds in favor of the defendant. Let judgment be entered, upon the finding of the court, in favor of the defendant, with costs.