Robinson v. . Clark

52 N.C. 562 | N.C. | 1860

One W. W. Battle, as a constable, and Manson Tate, deputy sheriff, had several executions against the plaintiff, and levied them upon the wagon in question. They made their levies on the same day, and agreed to sell on the same day for their joint benefit. Several persons attended the sale, but the plaintiff was from home, and it was agreed between the officers that Tate should cry the sale and Battle bid off the (563) property for the plaintiff (the defendant in the executions); that is, Battle was to bid off the property and hold it till the plaintiff returned, when he was to have the liberty of redeeming it by paying the amount bid, with interest. According to this understanding the property in question was sold and bought by the officer, Battle, who afterwards transferred his bid to the defendant, who agreed to take the property on the terms and subject to the trust attaching to it in the hands of Battle. On the return of the plaintiff he tendered to the defendant the sum paid by him for the wagon, with interest, and demanded the wagon; but he refused to surrender it, and this action was then brought.

The court instructed the jury that an officer could not buy at his own sale; that the sale in this case was, therefore, a nullity, and that plaintiff had a right to recover the value of it, the wagon. Defendant excepted.

Verdict and judgment for plaintiff, and appeal by defendant. It seems to us the view which his Honor took of this case in the Superior Court is correct. It is a well settled principle that an officer (sheriff or constable) cannot buy at his own sale, either directly or indirectly — either by himself or an agent, for himself or another.McLeod v. McCall, 48 N.C. 87.

By a reference to the facts of the case as reported, it is manifest that the sale of Officer Tate was made by him in behalf not only of himself, under the executions which he had levied, but also in behalf of the other officer, Battle, who had also levied simultaneously with Tate, and who was present at the sale; and it is in like manner manifest that Battle bought, not upon his own motion alone, or for himself, but on account of a mutual understanding between the two that he was to buy and hold the legal title to the property in trust for the defendant in the execution. It is a sale, then, in substance, by two officers, and a (564) purchase by one, which is, of course, a purchase by the latter at his own sale. This is in contravention of the well established principle as stated above.

The mischief that is intended to be remedied by the disability of an officer to buy at his sale would pertain with increased powers of harm to a case of combination between two officers, like the one before us. The purpose of the officers in question seems to have been fair and benevolent, but such combinations might be converted into schemes of fraud — as this has been, in fact, by the defendant, who is the assignee of the officer. We think, therefore, that concert of action on the part of the officers, so far from taking it out of the rule, makes it more clearly and strongly liable to its operation.

Pitts v. Petway, 34 N.C. 69, to which our attention has been called, establishes no principle in conflict with the rule as here held, for, supposing trustees and ministerial officers of the court to stand upon the same footing, and suppose the plaintiff was willing to regard the sale as good sub modo, to the extent and for the purpose held in that case, yet, when the plaintiff found the defendant no longer acknowledged the trust, the plaintiff was at liberty also to repudiate it and regard the sale as a nullity.

PER CURIAM. No error.

Cited: Tayloe v. Tayloe, 108 N.C. 73.