Wood v. Levis

The opinion of the court was delivered by Coulter, J. — The judgment in this case must be reversed. It is fit, and proper, and every way conduces to public advantage, that judicial sales should be subject only to the terms which the law imposes. Neither sheriffs, nor any other ministerial officers, have power to make terms different from those prescribed by law. It is not certain whether the sheriff replied to the interrogatory put in the crowd, or whether it was some other person. But, if he did, he had no authority to make his answer obligatory upon one party or the other. He probably answered to the best of his information. The conditions of sale were very clear and succinct,- and they were those which the law sanctioned. It was the duty of the purchaser to inform himself of every fact which he deemed material. The rule of law is caveat emptor ! as applicable to law sales. If encumbrances exist, such as a mortgage, of which he had no notice at the sale, he is not thereby discharged from his liability; because everybody is supposed to know the law to be, that a sale on a junior judgment does not discharge the mortgage. It was the first and most obvious duty of the bidder to search the records for information on that subject. The sheriff, (if it was he who made the reply, that nothing but the amount of the bid would have to be paid,) meant, perhaps, that nothing but the amount of the bid would have to be paid to him, on that sale; or he may have been ignorant of the mortgage. He had no power or authority, whatever, to alter the terms of sale which the law provided. The defendant was bound to pay. If he had any excuse for not performing his contract, he ought to have applied at the return of the writ; perhaps the court would then have granted relief. The defendant is legally responsible for the difference between the first and second sale. Judgment reversed and a venire de novo awarded.