Galpin v. Lamb

White, J. It has been ruled in many cases that a sheriff may maintain an action in his official capacity, against the purchaser of real estate at judicial sale, to recover the price at which the property was struck off at such sale. Ennis v. Waller, 3 Blackf. 472; Hand et al. v. Grant, Sheriff, 5 S. & M. 508; Chappell, Sheriff, v. Daun, 21 Barb. 17; Armstrong v. Vroman, 11 Minn. 220; Gwynne on Sheriffs, 355. In making such sale according to the commands of the writ under which he acts, he is discharging his duties ás an officer of the law. As is said in Armstrong v. Vroman, supra, until the money realized from the sale of the„land comes into the hands of the sheriff', the judgment creditor has no legal interest in it. It is the sheriff’s duty to make the money as commanded by the writ. Por this purpose he has the right to enforce the collection by suit, if necessary, both for the sake of securing his own fees and that he may have funds wherewith to respond to the judgment creditor. The contract of purchase is made with the officer as representing all the interests involved in the suit in which the judgment or decree of sale is rendered. He and the purchaser are the only parties to the contract of purchase; and he alone can maintain an action against the purchaser to recover the purchase money.' The parties to the judgment or decree have different [535] interests and stand in different relations to the property, some holding the relation of debtor and others that of creditor. But however numerous the parties or diverse their interests, the officer represents them all, and none of the parties stand in such relation' to the contract of the purchaser as to entitle them to maintain an action on it. In the first place, they are not parties to the contract; in the second, they are pot united in interest; and in the third place, if each could maintain an action, the purchaser would be subject to a multiplicity-of suits on a legal cause of action in which he is entitled to a jury trial. Nor is the question affected by the insolvency or bankruptcy of the judgment debtor. • Although insolvent, he is still interested in having the judgment paid; and if a bankrupt, his assignee has such interest, for, to the extent that the judgment is paid, the claims against the assets in the hands of the assignee are diminished. The action is supposed to be maintainable by the plaintiff below, Lamb, on the ground that if the first sale had been completed, the purchase-money would still have been insufficient to discharge his lien, and that the whole of the purchase-money would have gone to him after paying the prior incumbrances. But that this ground is untenable was expressly decided in Adams v. Adams, 4 Watts, 110. The court in that case say: “The sheriff’, in making the contract of sale with James Adams (the purchaser), was not acting as the agent of the plaintiff’, nor yet of any one else. He is considered the principal himself in such eases, and the legal, as well as the real party making the contract of sale. Although it be'true that he acts in the character of a trustee, yet it must be borne in mind that it is as an officer of the law that he does so; and that it is from the law he derives all his power and authority, and in sales of property made by him, as sheriff, under this authority, he alone has the right to receive the money arising therefrom, and is responsible for the legal appropriation of it, unless it is brought by him into court for that purpose. It would inevitably produce [536] great confusion and clashing of suits to permit other persons besides the sheriff, in their own names, to maintain suits against the sheriff’s vendees for breaches of their contracts made with him. It would also be inconsistent with every principle of analogy in the law. The court were right, then, in directing the jury that the plaintiff was not entitled to recover the money in question, because there was no privity of contract between him and the intestate of the defendants. There was none, most certainly, either in fact or in law.” The same doctrine was subsequently affirmed in Gaskell v. Morris, 7 Watts & Serg. 32. And it may be remarked in regard to these decisions of the supreme court of Pennsylvania, that in that state there is no separate chancery jurisdiction, but that law and equity are administered there as here in the same forum. The ease of Mayer v. Wick, 15 Ohio St. 548, is not inconsistent with the foregoing decisions. In that ease the sale had been confirmed, and the officer had thus become responsible for the purchase-money. He had tendered the deed to the purchaser, and assigned his right of action to the plaintiff in the decree under which the property was sold, and the latter was allowed to maintain the action for the purchase-money. The objection to the plaintiff’s maintaining the action is not waived, as is claimed in argument, by the failure to demur, on the ground of a defect of parties plaintiff. The objection is not that there is a defect of parties, but that no right of action is shown to exist in the plaintiff. The code does not give such right of action. The rules of the code in respect to parties are substantially the same as those which prevailed in equity before the adoption of the code. Where no right of action existed in a party either at law or in equity, the code does not create one. Whether, if the sheriff should, by reason of collusion with the purchaser, refuse to bring the action, or, on being indemnified, should refuse, in a proper case, to do so, the parties in interest might not maintain a suit in equity [537] against the sheriff and the purchaser, we need not now inquire ; for no such case is made in the petition. It is claimed by the plaintiff in error that the law by which a purchaser, who fails to pay the purchase-money, is subject to the loss resulting from a resale of the property, is not applicable to real estate, especially not to such property sold at judicial sale. In Indiana the subject is regulated by statute, and the purchaser may be proceeded against by motion and charged with the loss resulting from the resale. Williams v. Lines, 7 Blackf. 46; Laverty v. Chamberlain, Ib. 556. The same is true in Maryland, and, perhaps, in some of the other states. In this state we have no statute on the subject, and whether the rule adopted in Pennsylvania prevails here we need not now definitely decide. Assuming for the purposes of the present case that it does, there is another fatal defect in the case of the plaintiff below. Before the purchaser could be charged with the loss resulting from a resale, he ought to have been advised that the" second sale was to be made at his risk. No such notice was given by rule of court or otherwise. The purchaser might well have supposed from the order of the court refusing to confirm .the sale, and directing the property to be again sold without qualification or condition, that the first sale' had been abandoned, and that all parties had elected to take the chances of a second sale. Ve are of opinion, therefore, that the court erred in overruling the demurrer to the petition. The judgment is reversed, the demurrer to the petition sustained, and the petition dismissed.