63 Vt. 259 | Vt. | 1891
The opinion of the court was delivered by
The material facts in this case are as follows : Dunn & Crampton, having a demand against Christ’s Church and others, brought a suit upon it for its collection. The writ was served by the plaintiff as deputy sheriff by attaching certain real estate of the debtor situated in the village of Rutland, and was returned to the September term, 1887, of Rutland County
Three grounds of defence are claimed to this action: first, that the contract, being for the sale of an interest in land, was void under the statute of frauds, not being in writing; second, that the omission of the plaintiff to make known the facts at the sale that the mortgage had been foreclosed, a decree made and the time of redemption fixed, operated as a fraud upon the defendant. It is furthermore insisted that the deed was not seasonably made and tendered to the defendant.
1. It is laid down in Ereeman on Ex. s. 335, that in ordinary circumstances there is no warranty of title and- that the officer has no authority whatever, in his official capacity, to make any warranty or any representations concerning the
It seems to be generally held that in sheriff’s sales on execution the officer is not a party who can be charged as vendor; that he acts as a public officer, .as a minister of the law in obedience to its mandate and in the execution of the authority which that mandate confers upon him over the property of the debtor; that the state or the law sells the property by its agent, the sheriff ; that therefore the rule of caveat emptor applies in such sales ; that the purchaser bids off the property at his own risk and that upon any failure of the title he has no relief from the payment of his bid but by a resort to the Court of equity. Tate v. Greenlee, 4 Dev. (N. C.) 149. See notes and cases cited in Lewark v. Carter, 117 Ind. 206, (3 L. R. A. 440), where the rule of caveat emgptor as applicable to judicial sales and sales on execution is fully discussed.
2. The general current of the authorities cited by the plaintiff’s counsel, is to the effect, that a sheriff’s sale must be supported by a memorandum, sufficient within the statute of frauds, yet it has often been held that that statute has no application whatever to the sale of real estate by process of law; that a compliance by the sheriff with the requirements of the statute is sufficient. Under our former statute, B. L. 1573, an execution extended and levied upon real estate, with the return of the officer thereon, duly returned and recorded, made a good title to the creditor as against the debtor in such execution; but the authorities that require a memorandum in such sales, are uniform
The execution creditor first created a lien upon the land by attaching it on .the original writ, which lien was continued after judgment by levying the execution upon it. The execution- and sheriff’s return thereon became a link in the title. The return is a memorandum of the sale by authority of law. It would have been available to the purchaser in obtaining his title, and it should be equally available to the officer in collecting the price for which the property was sold.
3. See. 10, No. 138, laws of 1881, does not require that the sheriff shall tender, or have ready to tender, a deed of the land until the expiration of six months and fifteen days after the sale. It evidently contemplates that it should be ready for delivery at that time, because it provides that if the premises are not then redeemed by the mortgagor or the subsequent attaching creditors, the officer shall thereupon deliver the deed to the purchaser, while if it is redeemed, he shall destroy the deed and repay the purchaser. If the deed had been offered and accepted, and the $250 paid at the time fixed by this section, the defendant, in order to protect his interest, must have paid the amount of the Edson decree. When the deed was offered to him on Nov. Ith, he had purchased that decree, so his relation to the property was not changed by the plaintiffs delay in offering him the deed. His liability to pay the $250 was established when the land was struck off to him at his bid of that sum at the sale, and .the plaintiff s neglect for three months to demand the money and offer a deed, could not operate to release the defendant from that liability. He apparently undertook to obtain title to the land by buying in the several claims upon it. When called upon to pay his bid he was naturally content to rest upon the title that he had acquired under the decree, which he purchased after the equity of redemption under it had expired.
Neither grownd suggested is sufficient for a reversed of the judgment, and it is affirmed.