Bartholomew v. Warner

Dutton, J. This was an action of assumpsit brought by a purchaser of a horse at a sale on an execution in favor of Arnold & Little against one Roorback. The declaration contained a special count and a general count for money had and received. The plaintiff claimed that he paid to the constable, the defendant, the full value of the horse, supposing that it was the property of Roorback; that in fact it never was the property of Roorback at all, but that it had belonged to one Morse, who, according to the laws of Massachusetts where he resided, mortgaged it to one Northway, and that Roorback merely had the possession of it for a special purpose; that previous to the sale Arnold & Little and Northway were informed of the mortgage, but Arnold & Little directed the defendant to sell the horse and gave him a bond of indemnity. [102] The plain tiff further claimed that at the time of the sale he had no knowledge that Northway or any other person had any claim, mortgage or lien on the horse, nor that there was any controversy as to the title.; that the defendant did not at the sale or before disclose the facts or his knowledge concerning the claims of Morse and Northway, but that he concealed his knowledge from the plaintiff; that one of the execution creditors attended the sale and bid upon the horse, but he did not disclose the claim, mortgage and lien of Northway and Morse, nor did he direct that the facts should be disclosed by the defendant to the plaintiff, although it was well known to the creditor that the plaintiff had bid upon the horse. After the sale Northway demanded the horse of the plaintiff and he gave it up to him. The court, in opposition to the claim of the defendant, instructed the jury that if they found the facts as claimed by the plaintiff they ihiglit render a verdict for the plaintiff on the count for money had and received. The defendant now insists that there ought to be a new trial for a misdirection. The principal ground taken by him is, that it was the duty of the officer merely to sell whatever title to the property the execution debtor had, and that he was under no obligation at the sale to make any declarations regarding the title to the property. But we think the charge was right. The plaintiff’s counsel did not and could not claim that on a sale on execution there is any warranty even of title. Nor is an officer bound, as a general rule, to make any representations ~as to the quality or the title of the property offered for sale. But for the very reason that there is no warranty,' he ought to conduct the sale in perfectly good faith. He must not say or do any thing calculated to deceive or mislead the bidders. If the facts were as claimed by the plaintiff, the execution creditors were endeavoring to collect their debt out of property to which, for this purpose, they had not the1 shadow of a claim. It never belonged to their debtor. The only persons who had any title to it wore Morse and North-way. The officer, being aware of this, demanded of them an indemnity bond before he would sell the property. The plain [103] tiff claimed, and the jury under the charge would have a right to find, that the officer concealed the facts which were within his knowledge. The term “ conceal” implies something more than a mere failure to disclose. We do not in general speak of a person’s concealing a thing, unless he is in some way called upon to produce it. The circumstances of the case, as claimed by the plaintiff, lead to a strong suspicion that the officer was actively aiding the creditors. If so, the plaintiff parted with his money without receiving any consideration which ho could retain, and the defendant obtained it by a breach of good faith and he would be equally liable with the creditors to refund it. It would be strange indeed if such is not the law. It would furnish a very convenient way to collect a bad debt. All that the creditor would be obliged to do, would be to find some .officer who would aid him in his scheme, and direct him to levy his execution on some stranger’s property as the property of the debtor, and then adroitly sell it to some unsuspecting purchaser. The court, viewing the subject in this light, have no hesitation in sustaining this charge upon the main question. But there are respectable authorities which go much further than it is necessary to go in this case. They maintain the doctrine that if an officer has knowledge of defects of title he is bound to disclose them at the time of sale. Commonwealth v. Dickinson, 5 B. Monroe, 506. It is at all events difficult to reconcile an officer’s silence, when he is aware that bidders are proceeding in the supposition that if they purchase they will acquire a good title when he. has reason to believe they will not, with our ideas of honesty and propriety. If he is excused from going into particulars, why should he not be required to put bidders upon their guard ? Why should he not let them know that the title may be disputed ? Why, at any rate, should not the creditor, who is to derive all the benefit of the sale, be governed by the same rules of honesty as any other vendor ? The case of Young v. Marshall, 8 Bing., 43, is a strong authority to show that if the creditors were not in justice and equity entitled to this money, this action for money had and. received would lie against the officer, he having taken [104] a bond of indemnity, even though he acted in good faith. In that case a creditor had sold certain goods on execution, after an act of bankruptcy of which both he and the sheriff were ignorant. The money had actually been paid over to the creditor. Tindall, C. J,, says :—“ It has been contended that the action does not lie because the money has been paid over to the judgment creditor without notice of the act of bankruptcy. If this were so, I should agree that the money was no longer in the defendant’s hands to the use of the plaintiff. But money paid over on an indemnity may be said not to be paid over at all.” The assignee recovered the money of the sheriff. But the assignee’s right to the money in that case was no better than the mortgagee’s right would have been in this. There was a stronger objection to this form of action in that case than in this, because it appeared that the money had actually been paid over, while in this case it does not. The decision is based upon the ground that the creditor was not entitled to the money which the officer had obtained by a sale of property on an execution in his favor, because his debtor was not the owner of the property. According to the principles of that case, Arnold & Little were not entitled to the money in the hands of the defendant, because the property sold did not belong to their debtor, but Northway, if he chose to ratify the sale, was. But he chose not to ratify the sale, but demanded of the purchaser the horse itself, which had not been legally sold. He, having no legal title to it, gave it up to the owner. This clearly gave to the purchaser the same right to the money which Northway would have had. In this view of the case it involves no question of warranty or fraud on the part of the officer or of the creditors. It is no attempt to make the officer personally responsible for any of his acts. It is the mere question to whom the money in the hands of the officer equitably belongs. It may be considered as coming under that class of cases where one man’s money has come into the hands of another through mistake or misapprehension. Charity requires us to suppose that Arnold & Little would not have levied on this horse if they had not mistakenly supposed that it belonged to Roorback. - After they discovered the mis [105] take they could not in common honesty take the money, and no one else but the plaintiff had any claim to it. We do not advise a new trial. In this opinion the other judges concurred; except Mc-Curdy, J., who having tried the case in the court below did not sit.