Piper v. Martin

Rogers, J. This was an action by Paul Martin, who was the sheriff of Cumberland county, against James Piper, to recover the price of certain stills purchased by the defendant at a sale on an execution issued on a judgment by the said James Piper against William Noacre. James Piper, the plaintiff in the execution, himself became the purchaser, and as such was unquestionably answerable for the amount of his bid to the sheriff for the use of the creditors. The money it is to be presumed was not paid, [212] because the plaintiff, held the first execution, and was therefore entitled to a credit on his execution for the amount of his purchase. It seems, however, that after the sale there being some controversy among the execution creditors, it was agreed that the money arising from the sale should be considered in court for the purpose of appropriation. To this agreement the defendant was a party, and on a case stated the court decreed the money to the other execution creditors, the judgment and execution of Piper, on an issue directed for that purpose, being declared fraudulent and void. But although the execution was afterwards set aside, yet the purchaser was fixed for the amount of his bid, on the principle of caveat emptor, and because he agreed to consider the money in court for distribution, although he knew it was unpaid. By the sale as between him and the defendant in the execution, he became entitled to the still, for it is in full proof that the sale was with the assent of William Noacre, who agreed it should be taken and sold as personal property. Now whether, in contemplation of law, it was attached to the realty or not, as a fixture, is immaterial, as the parties agreed to consider it personal property. This dispenses with the ■ necessity of determining whether it was personal or real. There is no person who has any interest in this but Grove, who had a judgment against Peter Noacre, the former owner of the land. But Grove is no party to this proceeding, nor is he complaining, nor can his rights be affected; for the still continues attached to the freehold, as before. But it may be doubtful whether Grove would have any right to object, inasmuch as the still was affixed for purposes of trade, after the sale of Peter to William Noacre. It may, I say, be doubtful whether the owner would not have a right to remove it without the assent of Grove or any other person. But, be this as it may, by the agreement already referred to, it must be taken as personal property, and, as such, passed by the sale to the purchaser. Then, why should not the defendant be answerable for the amount of his bid ? Why should the sheriff be compelled to pay it, as has been already done, out of his own pocket ? This suit is only for the purpose of recovering the money to reimburse the sheriff, or to enable him to comply with the decree ordering the money to be paid to the other creditors. It is said, however, the suit cannot be sustained, because the money belongs to the assignees, in bankruptcy, of William Noacre. But not so. They were parties to the decree; their rights have been already adjudged. But, whether it be so or not, is immaterial, as the sheriff is the proper person to recover the money for the purposes of appropriation. [213] Nor clo we see any reason in the exception, that it was a voluntary payment by the sheriff; for, if paid (which, as has been before said, is of no sort of consequence), it was a payment under a decree of the court,’ in a case stated, to which the defendant himself was a party. We see no valid objection to the charge; for, if erroneous at all, the error is in favour of the defendant, who is plaintiff in error. This fifth error has been in substance disposed of in the preceding remark, and does not require particular notice. Judgment affirmed.