Hale v. Miller

15 Vt. 211 | Vt. | 1843

The opinion of the court was delivered by

Redfield, J.

This is an action of trover for certain property sold on execution in favor of the defendant against the plaintiff. It is alleged that the proceedings of the officer were so irregular as to render the sale void, and the officer and creditor liable in this form of action.

The irregularity complained of, is, that the officer, by the consent and direction of the defendant, who was creditor in the executions, advertised the property to be sold at a different place from that at which it was advertised, but both in the village of Middlebury. Not to determine, whether, within the purview of the statute, the village of Middlebury is to be considered as the same public place, it is obvious that the plaintiff’s proper remedy is an action on the case, for any injury he may have sustained, in this behalf. For the return appears regular, on its face, in this respect, and cannot be contradicted by the parties to it, except by an action for a false return. The sale being regular, the title to the things sold is transferred to the purchaser; and he being the creditor in the execution, makes no difference — as has been often decided. ‘He is not, in general, responsible for the official acts of the officer, even although he advised them. The officer must see to it that he do not take bad advice in regard to his official proceedings; and if he do take such counsel, he alone is responsible for his acts, and that in a proper action on the case.

Whether the officer can make title to the property, which he himself bid off, as against the plaintiff, who was debtor in the execution, is not necessary now to be determined. For one, I think he could not. His return shows a sale to himself, which, in law, is as no sale; but this is not determined. There is nothing in this case to show that the defendant did any thing to induce the officer to become a purchaser, except what he or any other person might well do. He did not forbid him, but told him he did not care how many times he bid. He could not hinder his bidding. He was not bound to advise him and did not. This renders it unnecessary to examine into the plea in abatement.

Judgment affirmed.