| N.C. | Jun 5, 1873
I. The legal effect of the fact that the venditioni exponas issued after the sale, on the last on which the plaintiff indorsed "the land sold under previous venditioni exponas action pending for the same bid." Do these facts amount to a waiver of the right of action against the defendant for the amount of his bid? and the legal effect of the fact that the sheriff agreed to give the defendant a few weeks to raise the money, does this fact vitiate the sale? are questions not presented by the case, for there are no allegations by which to put these facts in issue. There must be allegata etprobata, and under the new system as under the old, the Court cannot take notice of any proof, unless there be a corresponding allegation. Proof without allegation is as ineffective as allegation without proof. The record either as originally framed, or as made by amendment must set out the case as well on the part of the defendant as on the part of the plaintiff.
II. Can the sheriff who sells land under an execution maintain an action in his own name against the purchaser for the amount of his bid upon tendering a deed for the land sold? This is settled. Tate v. Greenlee, 4 Dev., 149; Grier v. Yontz, 5 Jones, 371. Indeed, unless the sheriff can force payment of the bid by action it is difficult to see how he can execute the writ. At one sale the bidder fails to pay the cash; the sheriff lets him go, and after the necessary delay, makes a second sale; the bidder fails to pay the cash, a third sale, and so on ad infinitum. If *240 upon tender of the money the sheriff refused to make title, he can be put under a rule, for he is an officer of the Court. If the bidder upon a tender of the deed refuses to pay, he cannot be put under a rule, for the Court has given a final judgment. The execution is a mandate to the sheriff to make the money by sale, and the Court has no privity or connection with the bidder. The relation of creditor and debtor exists between the sheriff and the bidder alone by force of the contract of sale, and the sheriff is left to enforce his rights by the usual remedy of action, unless he elects to rescind the contract of sale, and sell the land again, in which case, as in Grier v. Yontz, 5 Jones, 371, supra, he releases the bidder at the first sale.
It will be seen that a bidder at a sheriff's sale occupies a relation altogether different from a bidder at a sale made by order of a Court of Equity, either by its clerk and master or by a commissioner, for then the Court takes the matter into its own hands and makes the sale for the parties, holding the cause for further directions, taking the bidder under its protection and control, so as to relieve him from his bid if there be ground for it, or to compel him to perform his contract specifically, and managing the whole proceeding until the sale is in all things carried into effect, whereas the sheriff makes the sale by himself, without any confirmation or other act of the Court, and acts by force of a statutorypower to sell, receive the price and make title; so the Court has not privity or control over the bidder, and the sheriff is left to his action. It will be noticed farther that this statutory power conferred on the sheriff differs "in toto" from a power to sell conferred by an individual; there the attorney sells in the name of his principal, receives the money and makes title in his name, whereas a sheriff sells in his own name, receives the money and makes title in his own name, and if the money is not paid he sues for it in his own name. By force of the contract of sale the title of the defendant in the *241 execution is divested, and the sheriff although he goes out of office, may execute the deed for title, and it relates back to the date of the sale. This is familiar learning.
III. Was it necessary for the sheriff to make a return of the sale on the execution as a condition precedent to his right of action? We can see no principle upon which this can be required; after the sale as soon as the sheriff tenders the deed, it is the duty of the bidder, by the terms of the contract, to pay the money, and his failure to do so gives a cause of action, and the judgment will be that the sheriff recover on filing in Court a proper deed. He may be put under a rule to make the return, but there is nothing in the policy of the law which forbids him from taking time (as in our case) to consult counsel.
IV. The sheriff sold the "John Neagle tract," and he tendered a deed for it; the defendant refused to accept the deed unless it was made also to include a narrow strip of land and the water power attached, which lies outside of the "John Neagle tract," and was a part of the Lattimer tract. This is the gist of the controversy.
It is proved that the sheriff offered for sale the "John Neagle tract," and that was bid off by the defendant, nothing being said about the strip of land or the water power, and afterwards the sheriff sold the strip and water power which was bought by a third person.
The defendant insists that by means of an advertisement made by the sheriff some time before, it was contemplated to make a sale which did not take place, the sale being made six months afterwards. He was under the impression that the strip of land and water power either formed a part of the John Neagle tract or was to be sold with it, and that his main purpose in bidding was to get the water power, and on this ground seeks to be relieved from his contract. To this the sheriff replies that the defendant had the same, if not better means of information than he had in regard *242 to the boundaries of the "John Neagle tract," which was all that he sold. The whole matter was submitted to the jury. We do not feel called upon to analyze the many generalities and abstract propositions set out by his Honor in the charge. It is sufficient to say it contains many truths and some errors taken in the abstract, but none that are applicable to the evidence which could by possibility have operated to the prejudice of the defendant, and upon the whole we are satisfied that the verdict does substantial justice, and do not feel called on to disturb it, in the absence of a distinct issue, which the defendant had it in his power to offer; that he was in fact misled, and believed the "John Neagle tract" embraced the strip of land and the water power, or that he believed he was buying it.
PER CURIAM. Judgment affirmed.