Duncan v. M'Cumber

The opinion of the Court was delivered by Rogers, J. The only points presented, are those which arise upon the answers to the third point of the plaintiff, and the fourth and fifth points of the defendant. Under the Statute, 29 Car. 2, it has been held, that goods bought at a sale made under an execution delivered to the sheriff subsequently to the delivery of a prior execution, were protected from the prior execution, in the hands of the purchaser under the second execution; although, as to any other party, the goods were bound by the prior delivery of the first writ, under which the sheriff ought to have taken and sold them. (10 Watts 212). And this principle is supported by the authorities cited; it is founded on a principle of policy, by which, in consequence of the certainty of the title to the purchaser, the goods will bring their full value, and because no injury can be done to the first execution creditor, he being entitled to the proceeds in satisfaction of his debt. The law, therefore, properly [267] leaves the matter to be adjusted between the first and second execution creditors and the sheriff, without affecting the title of the sheriff’s vendee. Nor is a knowledge of the fact, that the goods are sold on the second execution, any impeachment of the vendee’s title. The same principle applies to the sale of the goods by the constable, when a prior execution has been put in the hands of the sheriff, who has omitted to make a levy on the goods. I throw out of view all idea of collusion between the purchaser and creditor or constable; for there is no evidence whatever tending to show any participation by him in procuring the sale by the constable. At the time of the sale, there were two executions in the hands of the constable: one against Rebecca Fellows, for about $70, in her individual capacity; the other, for $6.20, as the executrix of her husband. The latter only bound the goods, inasmuch as the property seized belonged to the estate of her deceased husband. Of course the sale, which was on both executions, could only properly be made on the small one. In consequence of the sale being made in satisfaction of both executions, and because he was unable to get bids for the property, when offered for sale separately, the constable sold the horses, wagons, and harness, altogether, and the plaintiff became the purchaser. Did, then, the purchaser obtain a title ? and on this question we cannot entertain a doubt. It is not his business to give directions to the constable, who is an officer of the law, or for him to decide whether the constable was in the line of his duty in selling on both executions — whether he was justifiable in exposing the property to sale together, or whether it ought to have been sold separately. A suggestion of this kind might have been treated by the officer as an impertinent interference with his appropriate duties. In many cases, a purchaser would have but little knowledge of the facts of the case; or if he had, would in most cases be incompetent to advise as to the proper course. The law, therefore, wisely leaves the whole responsibility to the officer himself; and if he has failed to perform his duty, he is answerable to those who may be aggrieved. The property sold for about $80, a sum much more than enough to pay the execution on which it was sold; with the application of the money, however, the purchaser has nothing to do; that is a matter resting entirely between the constable and the other creditors who may have claims to the property. So, if any person is aggrieved by the mode of conducting the sale, the constable must answer in damages. We do not consider knowledge on the part of the purchaser material, unaccompanied by collusion and fraud. Judgment affirmed.