Wells v. VanDyke

Mr. Justice Paxson delivered the opinion of the Court, This case was here before upon the refusal of the court below to enter judgment for want of a sufficient affidavit of ,defence. We then held (see 7 Out., 49) that the sale under an execution issued upon the bond accompanying the mortgage, was void as against Mrs. Wells, she being a married woman, and that the -sale did not pass her title to the mortgaged pre [115] mises. It followed that said sale was no defence to the scire facias on the mortgage; the judgment was therefore reversed, and a procedendo awarded. Since then the case has been tried in the court below, and it now comes up with a verdict against the defendant for the full amount of the mortgage. Upon the trial the defendants claimed as a credit the amount of the plaintiff’s bid ($4,000) upon the first sheriff’s sale, which was objected to by the plaintiff and disallowed by the court. It requires but a moment’s reflection to see that the credit should have been allowed. That sale was confirmed; the plaintiff claimed a credit for his bid; this was referred to an auditor, and the claim was allowed by the auditor and the court below. The matter was therefore solemnly adjudged by a court of competent jurisdiction, and its decree cannot be attacked collaterally and disposed of in this summary manner. It is no answer to say that the plaintiff bought a worthless title. That is begging the question. The execution issued upon the bond was a valid execution against the husband, and the sale thereunder passed any title there may have been in him. It may be he had no interest in the property; we do not know, and therefore cannot say so. The plaintiff may have supposed lie had an interest, and he had the right to sell it in the way he did. And though the fact be that he had no interest whatever, it does not help the plaintiff in this proceeding. A man who buys a worthless title at a sheriff’s sale, and pays for it, or is allowed a credit on his lien, which is substantially the same thing, has no standing to repudiate the transaction subsequently. The facts now set up by the plaintiff might have afforded a ground of relief had an application been made to the court below at a proper time and in a proper manner. But he allowed the sale to be confirmed, and insisted upon being allowed a .credit for his bid. The rule in sheriffs’ sales is caveat emptor. The parties do not treat for a title, but the creditor proposes to sell and the purchaser to buy, just whatever interest the debtor may have in the land: Weidler v. The Bank, 11 S. & R., 134. We are of opinion that the amount the property sold for at the first sale should be credited upon the mortgage. Judgment reversed, and a venire facias do novo awarded.