Brown v. Barnwell Mfg. Co.

The opinion of the Court was delivered by Mr. Justice Gary. The facts in this case are fully set forth in the decree of his Honor, the Circuit Judge, which, together with the appellants’ exceptions, will be incorporated in the report of the “Case.” 1 The exceptions will not be considered in the order in which they are numbered in the case. The fourth and fifth exceptions raise the question, that there was no memorandum in writing made by the sheriff showing that the plaintiff was the purchaser of the property. When the plaintiff offered his testimony relative to • the sale of the property, the defendants had the right to object to such testimony unless in writing, and to demand production of the sheriff’s sales book. Daniel v. Harley, 3 Strob., 234. Witnesses, however, were allowed to testify without objection to such facts as were required by law to be entered in the sheriff’s sales book, and appellants thereby ^waived théir right to object to such testimony on the grounds that it was obnoxious to the statute of frauds. A careful consideration of the decree of the Circuit Judge satisfies us that the seventh, eighth, ninth, and tenth exceptions were taken under a misapprehension of said decree. The language of the Circuit Judge was intended merely to illustrate the spirit of our statute relating to resales by sheriffs. 2 We cannot sustain the point for which the appellants contended in the eleventh exception. Mr. Izlar was anxious to get as much time as possible within which to comply with the terms of sale, but there was no testimony showing that he intended to abandon any of his client’s rights. If the act of the sheriff in reselling the property was, under the circumstances, an unreasonable [425] exercise of the discretion allowed him, then all the proceedings subsequent to the time when the property was bid off by Mr. Izlar, as attorney for Simon Brown, were null and void; and, therefore, the exceptions, raising questions of fact as to what took place after the property was resold, could have no effect in determining the rights of the parties to this action. 3 We come now to a consideration of the twelfth and thirteenth exceptions, which raise the main question in the case. Section 2121 of the Rev. Stat. provides: “Every sheriff’s sale, made by virtue of the directions of an execution, shall be for cash; and if the purchaser shall fail to comply with the terms aforesaid, the sheriff shall proceed to resell at the risk of the defaulting purchaser, either on the same or some subsequent saleday, as the plaintiff may direct; and in the absence of any direction by the plaintiff, the sheriff shall so resell on the same day, if practicable, and if not, on the next succeeding saleday, making, in every such case, proclamation that he is reselling at the risk of such defaulting former purchaser.” The sheriff represents in such cases the creditor, debtor, and purchaser, and he must act in such a manner as best to subserve the interests of all such parties. Farr v. Sims, Rich. Eq. Cases, 122. 4 The facts in this case show: 1st. That the property was bid off in good faith by Mr. Izlar, as attorney for Simon Brown. 2d. That at the time that the property was resold, he was making efforts to comply with said bid. 3d. That before the legal hours of sale expired, he had made arrangements to comply with the terms of sale. Mr. Izlar had bid off property on other occasions, and was allowed to pay for it with his check. No question was made as to his high character and financial standing. Under all the circumstances, it seems to this Court that the sheriff should have at least allowed the attorney all the time possible before the expiration of the legal hours of [426] sale, on the day when theSproperty was sold, for complying with his bid, especially when the attorney was taken by surprise by the requirement of the strict compliance with the terms of sale. We are, therefore, of opinion that the second sale of the property?was null and void. It should also be remembered that the hasty action of the sheriff in reselling the property caused it to bring nearly $500 less than the amount for which it was first sold. The conclusion at which this Court has arrived renders it unnecessary to consider the first, second, third, and sixth exceptions, which only relate to matters occurring after the resale of the property. It is, therefore, the judgment of this Court, that the judgment of the Circuit Court be affirmed. Mr. Justice Pope, concurring. It is with great reluctance that I concur in this opinion.