Sexton v. Nevers

Morton J. delivered the opinion of the Court. In levying an execution on an equity of redemption, the officer is bound to comply with all the regulations established by law, in relation to the notification, the mode of conducting the sale, the title to be given to the purchaser, and the return of his pre-' cept. These are official duties, for the neglect of which the delinquent is not only liable for himself, but the principal for his deputy. For a breach of these or other duties in the service of an execution, the officer is answerable to others injuriously affected by his conduct, as well as to the parties to the original judgment. Thus an action will lie in favor of other attaching creditors. Rich et al. v. Bell, 16 Mass. R. 294 ; Whitaker v. Sumner, 7 Pick. 551, and 9 Pick. 308. So it [455] will lie in fav or of a purchaser. It is true that he may require the warranty of the officer, that the requirements of the law have been complied with ; but he is not bound to rely upon such warranty. It might, in many cases, prove an inadequate remedy. It appears from the officer’s return, that he posted notifications in two towns adjoining the place of sale, instead of two towns adjoining that in which the land lay. This was such an error as rendered the sale invalid. Nothing passed to the plaintiff by the sheriff’s deed, and he may well maintain this action for any injury which he thereby sustained. The officer’s blunder injured no one but the plaintiff. It was a direct wrong to him ; and he is entitled to a remuneration. The only question of any difficulty, is the extent of the plaintiff’s suffering. Prima facie, the price paid would seem to be the proper measure of damages. The purchaser loses his land and the sum paid would not necessarily be exactly equivalent to the injury sustained. In some cases it might be too much, in others too little. In the case at bar the rule has no application. The executions upon which the equity was sold, were the property of Pitkin and Sexton. Sexton bid just enough to cover the amount of the executions and the costs of the service. No money was paid, except for the fees. In cases where the equity is bought by the creditor, the sum bid is no certain criterion of the value of the property. Whether Sexton at this auction acted as the agent of the company, or not, does not distinctly appear. But the facts clearly show that he acted in pursuance of an agreement with Wood ; and that the whole object of the sale on the execution, and the purchase by the plaintiff, was to perfect Wood’s title. Pitkin and Sexton having purchased the equity, which was at the time subject to several attachments, and having also procured assignments of the judgments which held these liens, conveyed the estate to Wood. All these parties fearing that there might be other attachments subsequent to the above and prior to the conveyance between them, agreed to sell the equity on the first executions, to guard against any such apprehended attachments. Sexton was to bid it off and then convey to Wood, who [456] had purchased of Pitkin and Sexton and given them his note for the amount of their demand upon the property, including the three executions which they had purchased. The whole proceeding was intended solely for the benefit of Wood. A special confidence was placed in Sexton by Wood. There seems too, to be sufficient evidence of this trust. If Sexton had obtained a perfect title to the equity, he would have been bound by his agreement to transfer it to Wood. He could in no way have derived any benefit from it without a breach of trust. Subsequent events show that no such attachments as were apprehended, existed. Wood’s title remained valid, and this precautionary measure proved to be unnecessary and entirely useless. No conveyance was made by Sexton subsequently to his purchase, and none could add any thing, to the strength of Wood’s title. No one, so far as the title to the estate was concerned, lost or gained any thing by the officer’s mistake. The plaintiff therefore cannot recover any damage on this ground. It is true that some time after the sale on execution, Pitkin and Sexton became doubtful of Wood’s ability to pay the note which he had given ; and that Pitkin, in the absence of his partner, undertook to sell the equity, and did in fact convey the same to one Maynard for a certain sum, which he indorsed upon Wood’s note. Since that time, upon the discovery that the sheriff’s sale was defective and that Sexton acquired no title by it, the purchase money has been repaid. And the plaintiff now seeks to recover the amount in this action. But this claim cannot be supported. The indorsement was made upon a partnership note, and this loss, if any has accrued, is the loss of the company and not of the plaintiff But it is very clear that the partners could, not recover for it. The conveyance of Pitkin could pass nothing. He had no title. But if Sexton had transferred his title to him it would make no difference. Wood needed no additional assurance of title ; and a conveyance to any one else would be in violation of the agreement between him and Sexton ; a breach of trust; and entirely subversive of the object which all parties had in view, in making the sale on the executions. Pitkin and Sexton made the indorsement in their own wrong. If, bv rea [457] son of their having recovered judgment on the note, the mistake cannot now be corrected, the loss n ust fall on those who committed the error. The plaintiff paid the fees and other expenses of the levy of the execution to the defendant’s deputy. These he has no right to retain. He was bound to execute the precept according to law. For this service he was entitled to the legal fees. For this the plaintiff paid him. In the apprehension that there might be an attachment on the property, the parties interested were willing to incur the expense of a levy, to guard against such a lien. But the officer, by his neglect of duty, deprived them of the benefit of the security which they sought And to allow him to retain compensation for services he nevei effectively performed, would be gross injustice. Although in some things in relation to the service of the execution, it is apparent that the plaintiff acted for the company, yet it does not appear that the money was paid for the company, or for Wood. Neither had any such connexion with the transaction ns will sustain an action. If the sheriff or his deputy be liable to any one, it must be to the plaintiff. He apparently bid for himself; he took the conveyance in his own name ; he was personally liable to pay, and did in fact pay, the fees and expenses. And for these, with intetest from" the time of payment, he is now entitled to judgment.