Wade v. Saunders

PuARSON. C. J. Appeal by defendants. Motion for venire <de novo, for error. 1. Because his Honor erred, in ruling that the sale made by the sheriff on Friday of the first week • of the term of the Court was valid. We concur in the conclusion oí his Honor. The exception rests upon the construction of the act of 1869-70, ch. 215, “ Sales (of land) shall be during the first three days of the term of the Superior Court, &c.” If the bidding had not been opened until Friday of the first week of the term, it may be that the sale would not have been held to be valid, but the bidding was opened on Monday, of the term, and the sale was postponed by public announcement, from day to day, for the want of bidders until Friday. So in contemplation of law the sale was made on Monday of the term. This view is not only supported by common sense, but is settled by many cases in our Courts to support the title of purchasers at sheriff sales on the distinction between things relating to the power of the sheriff, and things only directory in regard to which he may be sued for damages, as for not advertising “ in two or more places, &c,” purchasers not being required to see to matters of mere detail. 2. The finding of the jury, “that the deed executed by Aaron Sanders to his son, Jesse Sanders, was not bona fide, [276] but was fraudulent and done with purpose to defraud his creditors, disposes of the other points made in the case on- the part of the defendants j for fyow can Romulus F. Sanders, who claims under Jesse, the fraudulent donee, stand' upon fairer ground than he does, except as a purchaser for valuable consideration and without notice of the fraud attempted to be done by the said Jesse and his father, the defendant Aaron ? There was no evidence of his being an innocent purchaser. 3. The motion, that because Smitherman, one .of the plaintiffs, made a bid for the land, when it was offered for sale under an execution in his favor, as the property of Jesse Sanders, who now stands convicted as a fraudulent donee of a dishonest debtor, he is, on the idea of an equitable estoppel, not to be-allowed to show the truth, and that in fact the land as against the creditors of Aaron Sanders, continued to be his property, is so much at variance with all sense of justice that it cannot be entertained for a moment. Had Strider, who bought the land when it was sold as the property of Jesse Sanders, instituted proceedings on the ground that he was misled and injured by the fact that Smitherman bid for the land, a question might have been presented as in Williams v. Mason. But, as the matter now stands, Strider is not in the case. He has never taken a deed for the land, and if any inference can be drawn from the verdict of the j ury, the omission to do so was by reason of the fact that Jesse Sanders, under whom he derived title, was not a bona fide purchaser. Our conclusion is, that none of the exceptions of the defendants are well taken, and that the motion for a venire d,e novo was properly refused'. Pee CueiaM.. Judgment affirmed.