6 Ky. 216 | Ky. Ct. App. | 1813
This was an ejectment. On the trial, the plaintiff, to prove his title, produced in evidtnce a regular chain of conveyances from the patentee of the commonwealth to the defendant Hayden, and the record of a judgment and execution against him, together with a deed from the sheriff to the plaintiff for the land in controversy, purporting to be made to him as the purchaser at the sale under the execution. To avoid the conveyance from the sheriff to the plaintiff, the defendants offered to prove that the sheriff did not advertise the sale according to law, nor give notice to the defendant Hayden, then a resident of the county where the land was situated, of the day and place of sale ; that the sheriff at the day of sale declared that the sale would not be legal, and at first refused to proceed to sell, but was afterwards induced to sell by the plaintiff in ejectment, who was the agent of the plaintiff in the execution, and who gave to the sheriff a bond of indemnity, and became himself the purchaser. They also offered to prove that Hayden, the defendant in the execution, had, at the time it was levied upon the land, a sufficiency of personal estate to satisfy the execution ;
The only material question in this case is, the evidence offered by the defendants and rejected by the court below, was admissible or not ?
In the examination of this question, we will consider * — 1st, Whether the violation or failure of duty in the sheriff, in taking land when there was sufficient personal estate to satisfy the execution, or in not advertising and giving notice to the defendant in the execution of the time and place of sale, is in itself sufficient to viti-i»te the sale ?
■ And 2d, Whether when accompanied with the, other circumstances offered to be proven, such ⅞ violation or failure of duty on the part of the sheriff, does not render the sale voidable, and is not an available defence at law ?
The first point depends upon the correct construction of the “act subjecting lands to the payment of debts.” By the first section of that act it is enacted “ that lands, tenements and hereditaments shall and may, by virtue: of writs of fieri facias, be taken and sold in satisfaction pf all judgments, in manner hereinafter prescribed.” The subsequent sections, among other things, provide that the sheriff or other officer shall make the debt of damages first of the personal estate, next of the slaves, and lastly of the lands ; and prescribes when lands are seized the mode of advertising and giving notice to the owner or his agent, of the time and place of sale. As, prior to the passage of this act, lands were not liable to be taken and sold by virtue of a fieri facias, and as the act has made them liable )a the manner therein prescribed, it is argued on the part of the defendants that a seizure and sale not made in strict conformity to the manner prescribed by the act is void. Though the premises in this argument must be admitted to be correct, the conclusion attempted to be deduced from them does not necessarily follow. The intention of the legislature should in all cases govern in the construction of a statute ; but that intention should be collected, not from the phraseology of any particular part, but- from the whole statute taken together; However plausible the'
We must, therefore, conclude that in these respects the act is merely directory to the officer. Without doubt it is his duty to comply with its directions; and for a breach of his duty he would be responsible to the injured party ; but such a breach of duty is not in itself sufficient to avoid th<; sale.
Whether it is, when accompanied wkji the other circumstances offered to be proved in this case, is the next 'subject of inquiry. That these circumstances tend t<? shew that the plaintiff in ejectment participated in the illegal conduct of the sheriff, is evident. It is true that the bill of exceptions does not expressly state an offer to prove that he was cognuzant of the failure of duty on the part of the sheriff, and without such cognuzance he cannot be particeps criminis ; but that the testimony offered conduced to the proof of that fact, is clear. The declaration of the sheriff that the sale would be illegal » that he refused at first to proceed to Sell; that the plaintiff in ejectment, being the agent of the plaintiff in the' execution, induced the sheriff to sell by indemnifying hit» for doing so, and that he himself became the purchase!;» are all circumstances leading naturally tó such an inference. ’ Whether these circumstances are suffi-j*ient to es|ahlish the inference, is not a point either ne-.
The conduct of the sheriff being, therefore, illegal, and the plaintiff in ejectment being a particeps crhninis, it follows that the sale is illegal, covinous and fraudulent. That a sale thus affected with covin and fraud may be avoided, is a proposition too clear to require argument to prove.
‘ Whether the party may avoid it at law, or must be compelled to resort to a court of equity for relief, is a point of which at first view we entertained some doubt; but upon farther examination we can perceive no room for hesitation in declaring that the sale may be avoided ás well in a court of law as in a court of equity. The broad and general position that a court of law has concurrent jurisdiction with a court of equity, in matters of fraud, is to be found in every book which treats of the respective jurisdiction of those courts. This, to be sure, is not conclusive upon the point now under consideration : for a court of law, by givingjlamages for the fraud, as it may unquestionably do where the injured party elects to affirm the agreement and proceed for a compensation for the injury, might in one sense be said to have in such case a concurrent jurisdiction with a court of equity. But it is apparent from the most indisputable authorities, that such is not the sense in which the position has been understood and acted upori by courts of law : for courts of law, where the injured party elects to disaffirm the agreement, will relieve by avoiding the instrument obtained by fraud —3 Bac. Abr. title Fraud, letter D, and Wood’s Inst. 296, there cited. The case of Dutch vs. Warren, 1 Stra. 406, is founded upon and illustrative of this principle. That was an action upon the case for money had and received to the plaintiff’s use. On the trial it appeared that the defendant, in consideration of a certain sum paid bjf the plaintiff, had by a written agreement undertaken tó
We are, therefore, of opinion that the evidence offered in this case was admissible, and that the court below erred in rejecting it.
Judgment reversed with costs, and cause remanded^ fora new trial to be had not inconsistent with the fore-'' going opinion.