17 Pa. 353 | Pa. | 1851
The opinion of the court was delivered by
The judge below instructed the jury that he saw no evidence of McDermott’s knowledge of, or participation in the alleged fraud; and that their verdict should be for the plaintiff. There was evidence quite sufficient to carry the case to the jury, to whom the judge ought to have submitted the question of actual fraud. There was no evidence of any advertisements of the time and place of sale having been put up by the sheriff’s deputy, or any one else, no evidence whatever of notice; and although it was
The records of judgments obtained against Laguerenne by various persons, one of which was obtained before McDermott’s, and all of them very soon thereafter, going to show the large indebtedness of Laguerenne at the time he confessed judgment to his
Another ground is taken by defendant in error here, which was not taken by him in the court below; that is, that the sheriff cannot set up this defence of fraud or collusion, because he was a participant in it. The first observation I make on this position is, that if the court so declared the law, it would abet and carry out the fraud. But we are relieved from that necessity. It is not the sheriff who is concerned here, but the creditor of Laguerenne. ■The sheriff is but a man of straw, or rather a man impassible to wounds, who stands the thrusts of both parties. The plaintiff below, McDermott, called for the bond of indemnity from Quervelle to the sheriff, and the person who appeared for the sheriff produced it. By the very' act, therefore, of McDermott, the sheriff is thrust aside, in order to let the attorney of Quervelle contest the fraud and collusion of the first sale; who accordingly did contest, as stated in the paper-book, as the sheriff did not refuse to make the levy on the goods in Laguerenne’s possession, on Quervelle’s execution. This is the only time and place where Quervelle can make good his right, and establish that the sale to McDermott was collusive. This is not the case of two individuals contracting where they are absolute to bind themselves, even in fraud, but who cannot, even in such case, shut out creditors. The sheriff is the agent of the law, and if he does wrong for one man he is bound to do right for another. Did these goods pass lawfully to McDermott by the first sale ?
In Robbins v. Bellas, 2 Watts 357, it was held that a sheriff who sold land under a venditioni exponas is not thereby estopped from claiming the title as trustee of the person as whose property it was sold.
He was but the instrument of the law in making the sale. The rule that a man shall not set up his own turpitude, applies only to individuals having the right to control for themselves about their own property, and who shall not be permitted to s.et up their own fraud for their own advantage. That rule never extended to third persons so as to deprive them of their just rights; and never was so construed as to enable officers to defraud just creditors. We think the matters contested below remain unaffected by this principle.
Judgment reversed and venire de novo awarded.