Parks v. Davis

Lowe, J. It is difficult to characterize the act of the clerk complained of, other than simply a clerical error, or innocent -omission, which really worked no serious injury to the plaintiff, beyond the extra commission fees which he may have paid the sheriff, while, as the property was bid off by the plaintiff and no money paid, would not perhaps exceed two and a half dollars. When we say that it resulted in no material damage to the plaintiff, we allude to the fact, that it was competent for him, on motion to the [22] court, tp have had the satisfaction entered upon the execution canceled to the extent of the excess, at which the extra quantity of the land was bid off, leaving his judgment unsatisfied to that amount. Then it is presumed his position would have been just the same as if the mistake had not occurred, as held in Ritter v. Henshaw, 7 Iowa, 97; Warner v. Helm, 1 Gill., 220; Ontario Bank v. Lansing, 2 Wend., 260. The clerk of the District Court, as a public officer, should be held to a faithful execution of his duties, and if, through his negligence, an injury results, without any admixture of fault or similar negligence on the part of the one injured, he should be held responsible. But in this case, if the clerk was careless, the plaintiff manifestly was quite as much, if not more so, for we are bound to suppose that he was fully cognizant with the tracts of land and their description as contained in his own judgment; and if in a sale thereof, on a special execution, he bid upon and purchased a tract, which he knew, or in law is presumed to know, was not in his special judgment, and ought not therefore to be in his execution, it is, and was his own folly; and we do not see why the doctrine of caveat emptor does not apply in such case with all its strictness. Besides, when parties litigant stand in pari delicto with reference to the subject in controversy, the law, in its remedial provisions, will leave them where it finds them. We, therefore, do not think the court erred in sustaining the demurrer, and the judgment will be Affirmed.