The opinion of the court was delivered by
Redeield, J.
It is, at present, a well settled principle of the law of this state, that sales of personal chattels, unaccompanied by any visible, substantial change of possession, are inoperative, as against the creditors of the vendor. The cases of sheriffs’ sales have been considered an exception from the operation of this rule. It is not now necessary, and could not be useful, to go into the reasons of the exception. The cases upon that subject have followed in the track of Kidd v. Rawlinson, 2 B. & P. 59. The principal reasons there urged in favor of the determination are, that the publicity and the character of the sale rebut all inference of fraud. For myself I think this exception rests more upon *54, the fact that it is a transfer of the title, by operation of law, than upon its notoriety. It is the former, rather than the latter, which distinguishes it from sales by contract of the parties ; for if all public sales were to form exceptions to this very salutary rule, it would doubtless cease to have any beneficial operation. Sheriffs’ sales, and all sales by the officers of law, must be held, prima facie, good to transfer the title of the debtor, upon that appearing to have been done, by such officer, which the law requires to be done previous to the title passing. Now no law, and no practice, requires-such officer to make any delivery of the property. When he appears to have proceeded as sheriff, or other officer, and the sale is in invilum, it will be recognized, as an exception to the rule. But where he really proceeds by consent of the parties, and in making the sale, acts as the agent of the parties, and not as the minister of the law, his proceedings cannot be allowed any greater force than those of any other auctioneer. If he were really acting in the capacity a public officer, and by authority of his precept, we are not called upon to determine how far any circumstantial defect in his previous proceedings would affect the title of a purchaser. At least, we think it no hardship to hold, that where any specific advantage is claimed by force of a sheriff’s sale, it should be shown to have been strictly of that character. Not only the agent should have been a public officer, but in making the sale he should have acted under the authority of his precept. This is not that case.
Judgment affirmed!