24 Kan. 590 | Kan. | 1880
The opinion of the court was delivered by
The facts in this case are these: The taxes upon a lot in Wyandotte being delinquent, proceedings were commenced in the district court, under the law of 1877, to foreclose the liens therefor. Upon such proceedings, the prop- ’ erty was sold at sheriff’s sale, and deeded to defendant in error, plaintiff below. This was his title. Plaintiff in error, defendant below, held by quitclaim from the parties who were owners at the time of the tax proceedings. The case, therefore, one in ejectment, hinges on the validity of the deed of defendant in error. The'defendant in error was the auctioneer who, acting for the sheriff, cried off the property at the sale. The sheriff was present, and opened the sale, and perhaps sold one or two pieces of property; but the party who did the selling generally, and who, as to this particular lot, did all that was done in the matter of crying it for sale, receiving bids, and striking it off, was Drought, the party to whom it was so struck off and subsequently deeded. While the sheriff, being present, had the power to interfere at any time, prolong the biddings, or otherwise control the auctioneer, yet the actual management and control of the sale was left with the auctioneer; he acted in the matter upon his discretion ; so that as to this lot, he was both seller and buyer.
By the general law of agency, one may not assume such a position, and by that law his acts are voidable. But our
“No sheriff or other officer making the sale of property, either personal or real,' nor any appraiser of such property, shall, either directly or indirectly, purchase the same; and every purchase so made shall be considered fraudulent and void.” • .
If the sheriff had personally sold this property and struck it off to himself, no one would question the applicability of the statute. It is no less applicable here. This was a sheriff's sale. The right of the sheriff to employ an auctioneer is denied. We shall not decide this, but concede that he may so delegate his trust, he being personally present. But with the delegation goes the statute. As he may not sell to himself, neither can the auctioneer who acts for him. Each acts under the prohibition, and every sale made in disregard of that prohibition is by the statute to be “considered fraudulent and void.” Proof of good faith in the actual conduct of the sale will not uphold it. The statute is absolute. It was enacted to prevent the need of such inquiry. It is a wise statute, for while the- good faith of the parties to this transaction cannot be doubted, it would be very easy for an officer designing wrong to so cloak his conduct with an appearance of good faith as to render detection almost impossible. Public policy is better subserved by shutting .an absolute door upon such transactions, rather than by leaving them to stand or fall upon the proof of good faith or the want of it. “The law wisely prohibits an officer, in the execution of final process, from becoming a purchaser either directly or indirectly. It is in many, if not in all states, expressly prohibited by statute, and a sale made by an officer to himself or deputy is absolutely void, as against the policy of the law.” (Herman on Executions, p. 322. See also the many authorities cited in the note.)
Other facts appear which were the subject of much testimony and debate at the trial, and which have been discussed by counsel at length in their briefs. But these facts do not
Whether the lot-owners can so ratify proceedings and sale prohibited by statute as to make them good, we need not inquire, for there is no sufficient ratification here shown. For such there should appear, not merely knowledge of the amount
The judgment will be reversed, and the case remanded for a new trial.