Frost v. Hill

By the Court, Savage, Ch. J. Pierce, as the vendor of the property, warranted the title to both purchasers, and is liable for the value.to the losing party; and so far as his interest is concerned it is immaterial which succeeds; his interest is neutralized, and he was therefore a competent witness. The sale to the plaintiff below was inoperative and void as against the execution, and the sheriff might have sold the property on the execution, but he did not do so. The assent which the sheriff gave to the sale to the defendant below gave no validity to it. The case is to be considered, therefore, as if there was no execution in question. In this point of view, the sale at auction, at which Hill was a pur [389] chaser, was valid. There was a suEcient memorandum made by the vendor’s clerk and agent ; the property was paid for, because, by the agreement of the parties, the bids of the plaintiff below extinguished a portion of the debt which Pierce owed to Hill, and though the property was not removed, it was marked and designated as Hill’s. Frost purchased with a knowledge of the facts, .and is in no better situation than Pierce would have been had the action been brought against him and as between him and the plaintiff below, there can be no question that the sale was valid. The judgment below must be aErmed.