Shaw vs. Smith.
Where ¿lave*», ut an execution ¿ule, aie knocked oft’ to A, and ihey are delivered to the purchaser, or he has power to lake them into possession, with the consent of the sherift’, the sherift, in such case, may maintain an action against the purchaser to recover the amount of the bid.
A bill of sale from the sherift is not necessary to transfer a title to slaves sold at execution sale.
In shcriftV sales there is no wananty expressed or implied as to title.
In a suit against a purchaser of slaves at execution sale, to recover the amount bid, evidence by the defendant, showing* the title of the slaves was not in the execution debtor, and that therefore no title wa.: transferí cd to him, is irrelevant and inadmissible.
The defendant in error, as sheriff of Lincoln county, had in bis bands a fi. fa. in favor of John F. Morgan, against James S. and W. Holman, which he levied on a negro woman and two children, as the property of William W. Holman. On tbe day appointed for the sale of the negroes, and before the sheriff proceeded to sell, one James G. Barksdale, who claimed them as his property, forbid the sale; but the sheriff proceeded to offer them to the bids of the company; several persons bid for them, and among the rest the plaintiff in error, to whom, as the highest bidder, they were struck off for the sum of five hundred and twenty-one dollars. The negroes immediately descended from the block, where they bad stood with the sheriff, who said to the plaintiff in error,, “Here, Shaw, are your negroes, take them.” The negroes walked into the house of Holman, and Barksdale, the -claimant, took and kept possession of them.,. This action is.prosecuted by the sheriff to recover from Shaw the amount he bid for the negroes., .
At the trial in the circuit court, the defendant gave in evidence a bill of sale from Holman to Barksdale for the ne-groes, of a date, anterior to the, issuance of Morganls. execution, and proved by Barksdale, that he had purchased the *98negroes, and paid five hundred dollars for them. Evidence was also given, that Morgan had indemnified the sheriff against any liability on account of the cxecutiou and sale of the negiocs.
The court charged the jury, “That so soon as the ne-groes were knocked off by the sheriff, the property was changed, if tendered or delivered by plaintiff to defendant; and that if the negroes were in the power of the defendant with the consent of the sheriff, it was evidence of a deli very. That no bill of sale by the plaintiff was necessary to transfer the title to the defendant; and that the sale, as between the parties, was valid without a bill of sale; and that it was unnecessary for the plaintiff to accompany a delivery of the negroes with a tender of a bill of sale. That the law did not imply a warranty cf title to these negroes, either by the sheriff or said Morgan.”
A verdict and judgment were rendered for the sheriff for the amount of the bid of the defendant, to reverse which, this appeal is prosecute J.
F. B. Fogg, for plaintiff in error.
The act of 1825, c. 40, § 2, provides, that no officer shall be compelled to levy an execution on any property the title to which is disputed, and sell the same, unless the plaintiff will give bond and security to indemnify and save himself and such sheriff or officer. This act is an alteration of the common law. Where an indemnity is given, the plaintiff in the execution takes the place of the sheriff, and himself represents and guaranties, that the property levied on is the property of the defendants in the execution. So far from the sheriff being liable to the plaintiff in the execution, the plaintiff is liable to the sheriff. Now, at common law, if the sheriff levied on property which was pointed out and represented to him by the creditor as bis debtor’s property, and sold the same and paid over the money to the creditor, if the value of the property was afterwards recovered of the sheriff, he could recover it back from tbs creditor upon the ground of his representation. Humphreys vs. Pratt, 2 Dow and Clark’.s Reports 288. In all other cases the sheriff acted at his peril. But even in that case, in the sale of personal property, the law raises an im*99plied promise m a sheriff selling goods taken m execution, 11, , , , , • 1- • , , 1 that he does not know that he is destitute of title to the goods. 5 Taunton G57. Poto vs. Blades, 1 English Common Law Reports 252.
in this case, the court will perceive, that on the 7th of June, 1834, Holman, the judgment debtor, previous to the recovery of any judgment against him, by bill of sale, conveyed the negroes which were afterwards levied on to James G. Barksdale for five hundred dollars. This bill of sale was registered 14th of June, 1834, before any judgment was obtained. This sale is not in any way impeached for 'fraud against creditors or any other person. No actual delivery was made by the sheriff to defendant, and no bill of sale was made by the plaintiff to defendant. An officer who has taken goods upon an execution must sell them, not merely to the highest bidder; but if the highest bidder is notable to pay, the sheriff may offer them to the next highest bidder; and if the property be not paid for at the sale, the return should be, that the goods were knocked down to A. for so much, who did not pay the money, therefore the goods remain unsold. 2 Bacchus Sheriff 450. It is the duty of the sheriff to sell property to the highest bidder who will pay the money, and he ought not to part with the property until the money is paid. If the highest bidder will not pay the money, the sheriff should set up the property and sell it again. Downing vs. Brown and Barter, Hardin 181.
The sheriff ought also to execute a bill of sale. Act of 1784, chapter 10. The common law, and the act of 1794, c. 1, do not authorize a sheriff to levy an execution upon the goods and chattels of any other person than the defendant in the execution. That is his authority, and a seizure of the goods and chattels of any other person than than defendant in execution, gives him no right to sell; no authority whatever. He is a wrong doer, and can sustain no action by virtue of bis wrongful act, more particularly when the plaintiff in the execution cannot make him responsible, but is responsible to him, and has caused his wrongful act.
The cases referred to by defendant in error, refer to sales of real estate, where the sheriff does no vvtong to the proper*100ty qt possession of another, acquires no seizin, and is liable -to no action (see Gatlin vs. Jackson, 8 Johnson’s Rep.) as to difference of levy upon real and personal estate, owing to the nature of the property, there is no analogy between the two cases.
There is no consideration for the promise stated in the plaintiff’s declaration; there was no promise to pay the money; the sheriff is not liable to pay the money to the plaintiff in execution, nor is he liable to him in any way, the negroes levied upon not being liable to the original plaintiff’s execution.
Janies Campbell, for defendant in error.
-1. As to the first proposition in the charge of the court, it is presumed no objection will or can be taken.
2. Upon the second point, tliat no bill of sale was necessary, this court, in the case of Floyd vs. Goodwin, at Sparta, have decided the principle as laid down by the court. See 8 Yerg. Rep. 304.
3. Upon the third point, that no warranty was' implied, it is believed no objection can be taken. Henderson vs. Over-ton, 2 Yer. Rep. 394: 1 Teiih. Rep. 286:-4 Hay. Rep. 179: 2 Bay’s Rep. 171: 2 Murph. N. C. Rep. 291: 1 Devereux and Badger'Rep. 39: 2 Bibb’s Rep. 95: Martin’s Rep. 575, 63 5.
'Gr.ce'n, J.
delivered the opinion of the court.
Th this charge of the court, there are three distinct propositions laid down. 1. That if the negroes were in the power of the purchaser with the consent of the sheriff, that-the property in them was changed so soon as they'were knocked off by the 'sheriff. . .
in this statement there is ho error. . The .only delivery which can be made, of property of this description, is to plaice it in the‘power of the purchaser. The "con tract,, was complete so soon as the’negroes r/¿re’sifiick pif .tp thVpldintiíf in error, as the highest bidder., ’Tie'thereby(acquired (from the sheriff all the property in the negroes which had existed in *101Holman at the time of the levy, and in consideration thereof, J . he was bound to pay the price he had bid.
2. The court said, that a bill of sale was not necessary to transfer the title. In this the judge charged in conformity with the law, as settled by this court, in Floyd vs. Goodwin, 8 Yerger’s Rep.
3. That no warranty is implied, either by the sheriff, or by the plaintiff in an execution, upon the sale of goods by the sheriff.
The court is sustained in this proposition, both by authority and upon principle. See Henderson vs. Overton, 2 Yerger’s Rep. 394, and the authorities there referred to. Indeed, if it were true that a sheriff should be held responsible for the title of every article he sells, the difficulties of the office would deter any prudent man from its acceptance. Nor is there any reason in behalf of purchasers at these sales, why they should have a remedy in case the title should turn out defective. They-purchase upon speculation, and often obtain property at one-half or one-third of its value; scarcely ever is a fair price obtained. It would be most unreasonable, that they should have all the benefit of such speculations, and at the same time be secured against loss by a remedy against the sheriff. In this case, all the evidence going to show a defect of title in Holman at the time of the sale, and that Barks-dale was the owner of the negroes, was irrelevant, and ought to have been rejected. Let the judgment'be affirmed.
Judgment affirmed.