McKee, Sheriff v. . Lineberger

Counsel

Wilson , for appellants, argued: I. That a motion in the original cause to compel defendant to comply with his bid was the proper remedy, and not an action by plaintiff to recover the amount thereof. Council v. Rivers , 65 N.C. 54 ; Mann v. Blount , Ibid., 100; Mason v. Miles , 63 N.C. 564 . II. That a bidder or purchaser at a master's sale in equity subject himself to the jurisdiction of the Court, quod hoc , and can be compelled to perform his agreement specifically, 1 Wallace, 615. III. The fact that the sheriff failed to make a return upon the venditioni exponas and alias process issued to him in law was a waiver of the bid of defendant; and that his Honor erred in his charge in this respect. Grier v. Yontz , 5 Jones, 371. IV. That the sheriff's duty required him to sell for cash, and consequently his agreement to give time for payment of the money was contrary to the policy of the law and void, for the reason that the law gave him no authority to do so. State v. Johnston , 1 Hay., 293. Whenever an officer transcends his authority, his act is void. Jones v. Gibson , Term Rep., 41. As to what constitutes public policy, see Story on Sales, sec. 489. A sheriff's deed fairly executed at any time after the sale under execution relates back to the sale, and operates to pass title from that time. Dobson v. Murphy , 1 Dev., Bat., 586. V. That the Judge below erred in excluding evidence that the sheriff adopted the action of the commissioners in attaching the strip of land along the river in front of the Neagle tract to it. 1st. The sheriff has the right in his discretion to sell land by the acre. Davis v. Abbot , 3 Ired., 137.2d. It is the duty of the sheriff to sell land in such a way as to bring the most money. State v. Moon , 7 Ired., 387. VI. That the charge of the Judge (the second proposition) is erroneous in law, and the jury misled thereby. Bynum v. Bynum , 11 Ired., 632; Smith v. Sasser , 5 Jones, 388. Guion , also for appellants, insisted that this action cannot be maintained — the remedy being by motion or rule in the original cause. The judge held that the plaintiff could maintain his action as brought. The action is one virtually for the specific performance of a contract, the sheriff being the vendor, and the defendant the purchaser. When the hammer is down, the contract is complete, and the parties mutually bound. Such is the law as to auction sales, and judicial sales are governed by the same rules of law. Blossom v. Railroad , 1 Wallace, 655; Ibid , 206. The case decide that a bidder at a judicial sale becomes a party in the cause with rights which the Court will protect if necessary; and will summarily compel him to execute his part of the contract, being a party to the cause. He cannot ask relief in another suit. As to judicial sales, a bill for specific performance will not lie , a motion in the cause affording the most appropriate remedy. Patrick v. Carr , 1 Winst. Eq., 89; Mason v. Osgood , 64 N.C. 468 ; Mason v. Miles , 63 N.C. 564 ; Rogers v. Holt , Phil. Eq., 108; Mann v. Blount , 65 N.C. 99 ; ex parte Yates , 3 Jones Eq., 215. An action to recover the amount of a bond given by defendant to the clerk and master for the purchase of a tract of land sold by him, was held not the proper remedy, as a motion in the cause afforded the proper relief. 2. The plaintiff having neither the right of property nor possession, but simply a naked authority to sell, derived from a Court, cannot maintain this action, showing no order or direction from the Court to sue. Barden v. McKenzie , 4 Hawks, 277; Hill v. Child , 3 Dev. 265; Love v. Gates , 2 Ired. 14. As to lands, the sheriff has not even a special property in the lands. An auctioneer having a special property may sue. The sheriff is but an officer of the Court acting under its mandate, and must report to the Court, if any special matter shall arise; and like a receiver or other authorized agent of the Court, must receive permission or authority before he can sue. If he has a right to sue of his own will, he may disappoint the wishes of the judgment creditor, and prevent a resale if that were deemed most advisable. He may, as in the present case, go out of office before the trial, and afterwards receive the money and release his bondsmen, or, he may die and his executors or administrators receive the money. Quere: Would they be officer of the Court, and subject to its summary orders? 3. Plaintiff can only maintain this action on the ground that he has either paid the money or is bound for it; or that he is liable to pay it, for that he has been guilty of some dereliction of duty which subjects him to its payment. In either case the defendant is not liable. What amount would the plaintiff in execution recover from the sheriff under facts of this case? He may not be able to coerce the defendant to pay him the amount of his bid; and the land has been uninjured and may be worth as much or more now than on the day of sale. State v. Skinner, 5 Ired. 411. 4. The issuing of subsequent venditioni exponas was a waiver of the right to call upon the defendant for specific performance. The facts on this point amount to an actual rescission of the sale by both parties. It is made the special duty of all clerks of Court, under a penalty, to issue executions and aliases within six weeks unless otherwise directed by the plaintiff in the judgment. Rev. Code, ch. 45, sec. 29. In this case the sheriff concluded to make no return of the sale for the express purpose of having an alias to issue under which to resell the land as Rumfelt's property, and hold the defendant liable for any loss. Grier v. Yontz , 5 Ired. 371. The present case is not the first in this State. The orderly mode of proceeding when a purchaser refuses to make good his bid, is clearly and distinctly prescribed in the decisions of this Court: 1st, to make him pay the money, or 2d, to rescind the sale in toto; or 3d, which is the middle course, to order a resale, with the distinct assent of the bidder that he will make good any loss that may occur by a resale. This is the course pursued upon the return made to the Court and is upon motion of the party. Ex parte Yates , 6 Jones Eq. 212 and 306; Harding v. Yarborough , Ibid, in note; and Clayton v. Glover , 3 Jones, Eq. 371. Although the course and remedy are so distinctly announced by this Court and so just to all parties, this plaintiff has chosen to pursue a strategic course of his own conception. He sues the bidder as the owner of the property, and at the same time sues out of venditioni exponas to sell the property as Rumfelt's. He seeks his own safety in an illegal and inadmissible alternative. Such inconsistency of claims are not to be tolerated in a Court of Equity. 5. Defendant insists that a sale upon credit given to defendant by agreement made before the sale was void. The law of execution simply speaks of sales. Rev. Code chap. 45. But that term, vi termini in law implies sales for cash; not even notes or bills of exchange can be substituted, unless so specially directed in the judgment or decree. By sec. 18, all sales made contrary to the true intent and meaning of that chapter subjects the officer to a penalty. No action will be sustained in affirmance and enforcement of an executory contract to do an immoral act, or one against the policy of the law, the due course of justice or the prohibition of a penal statute. Sharpe v. Farmer , 4 Dev. Bat., 121; Beusley v. Bignold , 5 B. A., 335, (7 E. C. L., 121.) It is the policy of the law that all bidders shall stand upon an even footing at judicial sales. 6. That if defendant made his bid under a mistaken belief induced by the representations of the plaintiff, it would avoid the contract, and defendant would not be required to pay his bid. The Court in substance, charged the jury that if the defendant had as good or better opportunity than plaintiff to know whether the mill site and water power were a part of the Neagle tract, in fact, the misrepresentation of plaintiff would not entitle defendant to relief. The mill site and water power had been a part of another tract of land, lying on a small and narrow strip between the lower end of the Neagle tract and the river. It was in the sheriff's power, and it was his duty to have annexed it to the Neagle tract. He advertised that the mill site and water power were a part of the Neagle tract, and it appeared in fact to be so. No one could know better than the sheriff whether he had annexed, or intended to sell it with the Neagle land, and no reference to persons, deeds and Register's books or surveyors, could have given any one the same knowledge that the sheriff possessed. In Flight v. Booth , 1 Bing. N.C. 380. (17 E. C. L., 424.) the Court say: "In this state of discrepancy between the decided cases we think it a safe rule to adopt that where the misdescription, although not proceeding from fraud, is a material and substantial point, so far affecting the subject matter of the contract that it may reasonably be supposed that but for such misdescription, the purchaser might never have entered into the contract at all; in such case the contract is avoided altogether, and the purchaser is not bound to resort to the clause of compensation. Under such a state of facts the purchase may be considered as not having purchased the thing, which was really the subject of the sale. Stamper v. Hawkins , 6 Ired. Eq., 7; Pugh v. Brittain , 2 Dev. Eq., 34; Good v. Hawkins , Ibid., 393; Newsom v. Buffalow , 1 Dev. 39., 379. In the sale of real property at auction care should be taken that the description of it be accurate, or the purchaser will not be held to a performance of the contract. 2 Kent Com. 537. "Admitting that a purchaser might by minute examination make that discovery (of the material deficiency) he was not driven to that examination, the other party having undertaken to make a representation. Dyer v. Hargrave , 10 Vesey 509. The sheriff having advertised the property as he did in the newspaper for the purpose of inviting bidders to the sale of the property so advertised, should have made a correction of the description thus publicly given, and removed any false impression it had made. His real acquaintance with the property had nothing to do with the case; "Whether a party misrepresenting a fact knew it to be false, or made it without knowing it were true or false is wholly immaterial," c. 1 Story's Eq., par. 193, and cases cited. Schenck and Bynum , contra: The action is properly brought. Tate v. Greenlee , 4 Dev. Law 149, is a precedent directly in point, and it is cited and approved in Grier v. Yontz , 5 Jones 371. The authorities cited by defendant to show that a motion in the cause was the proper remedy are all equity cases, where all the parties are before the Court and are making their own sale; but this is a sale in invitio , under process. See distinction taken in Smith v. Brittain , 3 Ired. Eq. 351. In Council v. Rivers , 65 N.C. 54 , the Court says, "the remedy by order in the case is a principle of equity." The question of waiver is not raised by the pleadings, and it was error in the Court to submit to the jury. Heileg v. Stokes , 63 N.C. 612 ; Rowland v. Thompson , 64 N.C. 716 ; C. C. P., secs. 100 and 219. The error in the Court below in submitting irrevelant issues can only be taken advantage of after trial by appeal. Plaintiff may move now to strike them out. School Committee v. Kesler , 66 N.C. 323 . Credit given by sheriff does not invalidate the sale. See Tate v. Greenlee, supra . But this defense was not set up in the answer or by demurrer, and cannot be taken advantage of under sec. 99 C. C. P., because it does not appear on the face of the complaint. The charge on the question of misrepresentation is fully sustained by Walsh v. Hall , 66 N.C. 233 ; Lytle v. Bird , 3 Jones 223. The question of evidence raised is clearly untenable, because the appraisers had no right to annex the strip of land to another tract to enhance its value. Hana, the surveyor for the appraisers expressly swears that he did not attach the strip of land to the Neagle tract.