John Bates v. Eli Moore.
A levy on the goods of,the defendant in an execution vests only a qualified property in the sheriff. The general right of property remains in the defendant, and a sale made by him, to be effectuated on the removal of the sheriff's right of propel ty, is valid; and will be binding on the purchaser, although the mode of completing the contract is by purchase at the sheriff’s sale, and delivery of the sheriff’s title.
The provision in the 4th section of the statute of frauds, that agreements, which are not to be performed within one year from the making, must be in writing, applies only to cases where the whole contract is executory, and not to cases where it has been performed by one of the parties.
Tried before Mr. Justice Richardson, at York, Fall Term, 1831.
This was action of assumpsit upon a parol contract for the sale of three slaves by the plaintiff to the defendant. The slaves had been levied on by the sheriff, under executions against the present plaintiff, who was largely indebted by judgment and execution; and the agreement was, that the present.defendant should buy in the slaves at the sheriff’s sale, and pay for them $400, in cash, and the further sum of $ 150, in one year, without reference to the price for which they were bid off to him a the *615sheriff’s sale. At the sale, the slaves were bid off at $400, to a Dr. Hanna, who was acting as agent for the plaintiff, and who immediately transferred his bid to the defendant: and the latter paid the sheriff the money, and received the slaves from him, taking also his hill of sale as sheriff. He subsequently denied the existence of the parol contract, and refused to pay the sum of $150, which according to the contract, was to be paid after a credit of one year: and it was for the recovery of this sum that the present action was brought.
The parol contract was fully proved, and the jury, under the. charge of the Court, found for the plaintiff. The defendant now moved to set aside the verdict, and for a new trial, on the following grounds.
1. That the contract was nudum pactum; the plaintiff having no control over the sheriff ’s sale, and the defendant being at liberty to purchase at it without his consent: there being, .moreover, no stipulation on the part of the plaintiff, even if there had been an ability to perform it, that the defendant should have the slaves on the terms alleged to have been stipulated by the contract, in the event of their being bid up at the sheriff’s sale to a higher price.
2. That the contract was void under the 17th section of the statute of frauds, not having been reduced to writing, and the delivery by the sheriff having been in pursuance of the bid at his sale, and not of the alleged contract with the plaintiff.
3. That the contract was also void under the 4th section of the statute of frauds, as by the fair construction the sum now claimed was not tobe paid until one year after the sheriff’s sale, which was to take place onf a day subsequent to the making of the contract.
4. That parol evidence tvas inadmissible to add to, vary, and contradict, the written statement of the sheriff’s bill of sale.
Pressley, and Mills, for the motion.
Williams, and Hill, contra.
O’Neall, J.
delivered the opinion of the Court.-
In this case I have looked into the questions raised fay the appellant, with as much care as my limited timé would admit, and have given to the argument of the ingenious counsel for the defendant, all the consideration which the merits of the case required. Two main objections.seem to be presented to the *616plaintiff’s recovery. 1st. That the contract is without consideration. 2d. That not being to be performed within a year, it is void by the statute of frauds.
1st. It is true, as supposed by the defendant, that a levy vests the property, of the defendant in an execution, in the sheriff. But this is for the special purpose of sale, and satisfaction of the execution. The sheriff’s property is therefore a qualified one, and not inconsistent with the defendant’s general right of property. He may sell it, and pay the execution; and thus discharge the sheriff’s right of property. If he contracts to sell, and docs deliver the property, and discharges the legal lien on it, the consideration moving from him is just as good and legal as if no lien had existed, in this case, the sale by the sheriff, was the means of making the defendant’s title good: the sheriff is the agent of the defendant, the plaintiff, and the purchaser, under executions. The plaintiff’s agent, Dr. Hanna, bought the property at the sheriff’s sale, and transferred his bid to the defendant, to complete the contract of sale entered into previously by the plaintiff and the defendant. There was therefore, an actual sale, and delivery of the slaves to the defendant, on the Contract to pay $400, cash, and $150, at the expiration of one year from the sheriff’s sale.
2nd. Conceding to the defendant, that the contract to pay the $150, was not to be performed within one year, (which however is not very clear from the evidence,) still it is perfectly clear, that the case is not within the provisions of the statute of frauds. That part of the statute, which requires a contract not to be performed within the year to be in writing, has been over and over again held to apply only to cases, where the whole contract was executory; and not to cases, where it had been performed by one of the parties. This question was so fully discussed in the case in Equity of Hicks, adm'z. of Vernon ads. Gee, decided at this place at pur last session, that it is only necessary to refer to it for our views. The plaintiff here had performed his part of the contract by delivering the slaves,' and securing to the defendant a good title to them; and this created a liability on the part of the defendant to pay for them according to his contract.
Johnson, J. and Martin, J. sitting for Harper, J. concurred.
Motion refused.