4 Rand. 8 | Va. Ct. App. | 1826
delivered his opinion.
John Pate issued a Ca. Sa. against James Wright, which being executed, he delivered two negro men in discharge of his body. At the day of sale of these negroes, Read and Robertson, as trustees, exhibited a deed, by which these slaves were conveyed to them, to secure certain claims; and though they did not forbid the sale, the Sheriff required indemnity. Pate gave it; the property was sold; and the plaintiff was the purchaser. The trustees brought detinue against him, and had a recovery. The plaintiff paid the value assessed, with the damages, and files this bill for the recovery of this money, either from the Sheriff or his Deputy, or from Pate and his surety in the indemnifying bond. Wright, the' debtor, is made no party; but it is stated that he is utterly insolvent.
It seemed admitted in the argument, that at common law, a Sheriff selling under execution, with good faith, incurred no responsibility as to title: that there was no implied war
It is clear, that upon the ground of fraud or deceit, no action would lie against the Sheriff, in the case before us; for the plaintiff, in his bill, states, that when the sale of the slaves was about to take place, the deed of trust was exhibited. The plaintiff then, when he bought, knew perfectly that he was buying property to which there was a claim, and he had the ground of the claim before his eyes. He knew, too, that the Sheriff refused to sell, until he was in» demnihed. Being thus forewarned, he can claim nothing
The counsel for the plaintiff acknowledged, that if this were in proof the Court must consider the plaiutiff as buying at his own risque, and, therefore, bound to stand by it; but, he contended, that the return was no evidence, because no part of what the Sheriff is bound by law, to return; and he cannot, by his return, make evidence for himself, or affect the rights of the parties. With respect to the answer, too, that (it was said,) was a substantive, affirmative fact, and must be proved as other facts.
Without canvassing the soundness of these objections, it seems to me clear, that the plaintiff did buy nothing more than Wright’s interest in the slaves, and knew well at the time, that he was doing so. The property was set up as Wright’s. A deed of trust, which he had given on this property, was brought forward and exhibited. All were told, (the plaintiff among others,) “ Gentlemen, here is a lien.” I do not mean that these very words were addressed to them;, but, the exhibition of the deed proclaimed this in the strongest terms. The Sheriff, after this, selling the property, whether he declared it or not, sold only Wright’s interest; that is, he sold them as Wright’s, subject to this lien. This state of things would, of necessity, operate strongly upon the price of the property. Every one would judge for himself. If he thought the deed fraudulent, or, that if fair, there was more property than would pay the debts it was bound for, he would be encouraged to bid something; and he would be regulated by his own judgment, weighing the price against the chances of losing the property, or part of it, under the lien. Under these circumstances, the plaintiff bought two negro men for $506 50, which are said to be worth $800 or $ 900. He held them six years, the hire being worth, it is said, 150 • dollars per annum; and then, when the recovery was had, it was merely the price he had given, with interest on the
I do not, therefore, think that a case is made, which raises the question of substitution.
It seems to' me that the points made in the argument of this case, as arising under the Act of Assembly, do not arise, and need not be decided..
In the first place, it may be remarked, that this case is not one in which property was levied by the Sheriff, at his own risque, on a Fi. Fa. against the goods. The execution levied was a Ca. Sa. and the debtor being taken, he delivered the slaves in discharge of his body, under the Act of Assembly, which provides, that a debtor in such case may tender to the Sheriff, property to the value of the debt and costs, which he shall receive and proceed to sell, in like manner as in case of goods taken on a Fi. Fa. But in this case, the law goes on further to provide, that if the property shall be under any lien or incumbrance, so that the whole cannot be sold, (by which I understand to be meant, that the whole title cannot be sold,) a new Ca. Sa. or Fi. Fa. shall issue for the balance; and the Clerk of the
According to the bill itself, this was a case in which, on a Ca. Sa. executed, the property tendered and received by the Sheriff, was under an incumbrance. It does not allege that any notice had been given to the creditor even of this incumbrance; but states, that on the day of sale, the sale was forbidden by the trustees of the creditors; so that this, at most, was a notification by the incumbrancers, of the incumbrance on the property, that purchasers might know that their purchase must be subject to it. It also alleges, that the Sheriff refusing to proceed, unless indemnified under the. Act, the creditor gave bond and security, and the sale went on: that the appellant became the purchaser; after which the trustees brought detinue against him, recovered judgment, which has been affirmed in this Court; and he has paid the value and damages assessed. It appears that the value fixed on the slaves is precisely the same at which they were struck off to the appellant; and that the interest on that sum was taken as the criterion of damages for detention. How these estimates, so advantageous to the appellant, could have taken place, without consent, does not appear, and it may be unnecessary even to conjecture.
How does the case stand on the proofs ? The record says that certain exhibits were filed, but by which party is not stated. One of them is a copy of the judgment in detinue, and is the only evidence of that allegation in the bill; of course it must have been filed by the appellant. The other is the copy of the execution and Sheriff’s return, and, except the statements in the answers as to that matter, is the only evidence of a sale of the slaves by the Sheriff. Without resorting to one or the other, or indeed to both of these, there is no proof of that allegation in the bill. In
But, take the case as stated in the bill, what does it amount to but this ? That slaves, not absolutely sold, but only incumbei’ed, had been-delivered in discharge of the debtor, who had been taken in execution; and that on the clay of sale, this incumbrance was made known. The
The sale then, not being forbidden in the usual way, and the bond not being given in the usual way, and the sale being only of the debtor’s interest, the trustees very properly brought their suit against the purchaser. The bond is not in die record, and would probably shew that it was not taken under the Act, as, it seems to me, it could not be. Be this as it may, the only proof in the cause, of a-sale of the property, shews that the rights of the debtor only were sold. And then, more effectually to shew this, and still further to relieve the case of any doubt, Pate, the creditor, in his answer, offers to step into the shoes of the appellant.