Woodbury v. Parker

The opinion of the court was delivered by Royce, Ch. J. On trial the plaintiff, to show title to the property sued for, produced in evidence a writ of execution in favor of Solo* mon Downer against Jay Wilson and Hiram Wilson, together with his (the plaintiff’s) return upon it, as a deputy sheriff, showing a levy upon the oxen, being the property of Hiram Wilson, and a sale of the same at auction to himself. The return was objected to, as not legally tending to show title, and was excluded by the court. The correctness of that decision is the only matter to be considered. The case, by the bill of exceptions, is entirely bare of all other facts and circumstances; and the defendant appearing on the case, as brought here, in the character of a stranger to all title, it might seem, at first view, that tile return did tend to show, at least, a lawful possession of the oxen, acquired by the levy upon them, — which would be a sufficient title on which to recover against a mere wrong doer. But since it appears that the case did not stop upon that evidence being rejected, and that other evidence was introduced, (though the nature or tendency of it is not given,) it should, doubt* Jess, be understood, that no possession was in fact continued by the plaintiff until the time of the conversion by the defendant,— which is alleged to have happened between one and two yeays after the sale at auction, If the levy did not terminate ip the traps* [357] mission of a title to the plaintiff, it was abandoned, together with all actual or constructive possession connected with it. The sole question, then, is, whether an officer, acting under legal process, can sell property to himself. According to all the authorities, such an officer, in addition to his character as a minister of the law, is regarded as a sort of trustee and agent, both for the creditor and debtor. The two characters place him on higher and more responsible ground than a mere private trustee, or agent. And if the latter is not permitted to acquire a personal interest in the matter of his agency, much less should •such indulgence be granted to the former. It is urged, however, that he may take, at least, a defeasible title, good against all persons but the debtor and creditor. This is, indeed, the general rule in the case of a private agent and trustee, And it is doubtless true, that the parties conjointly, and perhaps the debtor alone, may authorize' an officer to become himself the purchaser. In such a case, however, the purchase is virtually made from the debtor, with the creditor’s assent, — if such assent is necessary. But so long as he acts without such concurrence of the parties, and merely by force of his process, the injunction against assuming such a personal interest should be stern and inflexible. To hold otherwise would be to place him under constent temptation to relax and violate his duty, in furtherance of selfish objects. This is the view, which has been strongly expressed in Mills v. Goodsell, 5 Conn. 475, Pierce v. Benjamin, 14 Pick. 359, and Perkins v. Thompson, 3 N. H. 144. And we think the sound and just rule to be, that the process, of itself, does not empower the officer to make a sale to himself; and that, without authority from the parties, (or the debtor, at least,) such an attempted sale involves an in» consistency and contradiction in terms, in supposing a party to contract with himself. It follows, that, if the sale of an officer to himself is relied upon,' it should appear to have been made with the assent and concurrence of those, whose interests were to be affected, — of both creditor and debtor according to the case of Mills v. Goodsell,—and of the debtor, at least, according to all the others. And since there was no offer, in the present case, to accompany the execution and return with proof of such assent, they were properly rejected. Judgment affirmed.