Mills v. Goodsell

5 Conn. 475 | Conn. | 1825

Brainard, J.

The question is, whether a sheriff having an execution to collect, levies it on personal property, and has occasion to sell that property at the post, can he be a purchaser—a seller and buyer-without the knowledge and consent of both creditor and debtor. I think he cannot. The objection is founded in moral policy. The plaintiff, as sheriff was, at the auction, the agent of both creditor and debtor ; and an agent cannot bid at the auction of property, which he is authorized to sell, and thereby become the purchaser of it. And the reason is, that otherwise great frauds might be practised without detection. The law takes from this agent the power of being dishonest, by removing the means of temptation.

It is idle to enquire into the fairness or unfairness of transactions of this character ; whether the sale, under all circumstances, was, or was not, the best that could have been made. A captain of a vessel, meeting with such disasters that he is compelled to abandon, becomes the agent of the concerned, whether owners or underwriters, and if obliged to sell the wreck as master, he must act in that capacity, and cannot become a purchaser. Neither can an executor or administrator under an order from a court of probate for the sale of the estate of the deceased whom he represents, be a purchaser of it.

It is in vain to urge that he gave more than any one else would;—that there were no bidders. The law cuts up, root and branch, the power to purchase, and the temptation to defraud. It will not permit an enquiry into the fairness or unfairnes of the transaction.

These points are so well settled, not only in our own courts, but in the courts of our neighbouring states, and of Great-Britain, that I will not refer to authorities. I will only say, that in the case of Davoue v. Fanning & al. 2 Johns. Chan. Rep. 252 the subject is ably discussed.

As to the responsibility of a sheriff, that he must be accountable for the supposed or estimated value of the property, when taken, and therefore has a right to bid and purchase to protect himself,—I think the principle unfounded. He must act with discretion, with honesty, and in all good faith ; and When he does, he is not answerable for casualties, or the knavish combination of others. He is answerable only for the result of the law, the highest bid.

Because a sheriff may be guilty of fraud or negligence, or imprudence in the first instance, the law will not, to save himself, give him a licence to be guilty of dishonesty in the second.

I am of opinion that the testimony offered was properly rejected; and therefore, I would not advise a new trial.

Hosmer, Ch. J. and Peters, J. were of the same opinion. Bristol, J. dissented.

New trial not to be granted.