
    A. Wingo, Sheriff, vs. Spencer Brown.
    
      Sheriff's Sale— Warranty — Mistake.
    There is no warranty at a Sheriff’s sale of land. The rule is cmeat emptor, and where there is no fraud, the purchaser cannot, at law, he relieved from his contract to pay the purchase-money on the ground that all parties were mistaken in supposing that the defendant in execution had such an interest in the land as could he levied on and sold.
    BEFORE WHITNER, J., AT SPARTANBURG, AUGUST EXTRA TERM, 1859.
    This case, which will be found reported in 12 Bich. 279, was restored to the docket of this Court by consent. It appeared from statements made at the bar, that the defect in the declaration, then supposed by the Court- to exist, was apparent only, and that the error arose from the fact that the brief contained an imperfect copy of the declaration.
    The declaration, as contained in the brief, is as follows:
    And for that whereas, afterwards, to wit, on the day of , in the year of our Lord pne thousand eight hundred and fifty-six, the said A. Wingo, Sheriff of the district and State aforesaid, by virtue of a writ of fieri facias to him directed, from and by the Court of Common Pleas of said district, legally advertised, and on sales-day in January, 1856, exposed to public sale, for cash, a certain tract of land in the district aforesaid, on the waters of , containing twenty-nine acres, more or less, bounded by lands belonging to W. M. Bhodes and others, as the property of one James M. Bhodes, at the suit of B. Bowden, Ordinary, and the said Spencer Brown, the defendant, became and was legally the purchaser of said land, being the highest bidder for the same, to wit, for the sum of one hundred and seventy dollars, and after-wards, to wit, on the day of , at, &c., refused to comply with the terms of said sale, which said terms were for cash: whereupon the said A. Wingo, Sheriff as aforesaid, the plaintiff, according to the provisions of the Act of the Legislature of this State in such case made and provided, then and there re-advertised and exposed the said land again for sale on the next sales-day thereafter at public outcry and at the risk of the former purchaser, the said Spencer Brown; at which said second offer of sale, to wit, on sales-day in February, 1856, there was no bid made by any one for said land, whereby the said Spencer Brown, by reason whereof and by virtue of the Act of the Legislature aforesaid in such case made and provided, then and there became, and was, and still is, liable to pay to the said A. Wingo, Sheriff and plaintiff aforesaid, the further sum of one hundred and sixty dollars, with interest thereon from the day of February, 1856, &c.
    The plea is as follows:
    And the said Spencer Brown, the defendant, by Bobo, Edwards & Carlisle, his attorneys, comes and defends the wrongs and injury, when, &c., and says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that the land supposed to have been bid off by him -was purchased by the said Jas. M. Rhodes on the day of , 185 , at public outcry, at a sale ordered by the said R. Bowden, Ordinary, of Spartanburg, at and for the sum for which judgment was obtained in the •case, by virtue of which the levy and sale referred to in the declaration of the plaintiff was made; that the said R. Bowden, believing that a sale under that execution by the Sheriff would confer a good title on the purchaser, ordered the Sheriff, A. Wingo, the plaintiff) to levy on said land as the property of James M. Rhodes, and sell the same, and the Sheriff, being under the same impression, did levy, advertise the same, and put it up to the highest bidder, and the same was bid for by the parties, believing that the purchaser would get a good title, and run it up to its full value; whereas it appears that ’ all the parties were mistaken, that the said James M. Rhodes had no title to the land whatever, and afterwards, to wit, on the day of , 185 , the money due to the said R. Bowden, Ordinary, upon his judgment was paid to him by one William Rhodes, and he made titles to the land in dispute to him, the said William Rhodes, and this he is ready to verify: whereupon the said defendant prays judgment of the Court, whether he is bound to pay his bid in the premises, and the plaintiff can -maintain his action thereof against him, &c.
    To which plea plaintiff demurred generally, and defendant joined in demurrer.
    Whitner, J. This case was heard upon demurrer to defendant’s plea, who, when sued by Sheriff for purchase-money agreed to be paid for a tract of land, sold at Sheriff’s sale, alleged by special plea that the defendant in execution had no title to the land in question, and that the debt secured by the payment had been . in fact subsequently paid by another.
    The demurrer was sustained.
    The defendant appealed, and now moved this Court to reverse the judgment of the presiding Judge, oh the ground:
    Because the defendant’s plea was a good defence in law to the plaintiff’s action, as James M. Rhodes, whose land was sold, had no title whatever; it was sold and purchased by mistake of all tbe parties, and the judgment was paid, and titles made by the Ordinary to a third party, as appears by the plea.
    
      
      Bobo, for appellant,
    cited Herbemont vs. Sharp, 2 McC. 264; State vs. Yongue, 6 Rich. 323; Utters vs. Wilson, 12 Rich. 145 ; Lawrence vs. Baubien, 2 Bail. 623 ; Moore vs. Ailcen, 2 Mill, 403. . .
    No counsel appeared for appellee.
   The opinion of the Court was delivered'by

Dunkin, C. J.

As early as Thayer vs. Sheriff of Charleston District, 2 Bay, 164, the Court, in speaking of Sheriffs’sales, uses this language: “ These sales are made by operation of law in which the will and consent of the defendant are never consulted. They are forced upon them; and it is their right, whatever that may be, more or less, that is sold by the Sheriff, who is a public officer of justice. There is no warranty in law, either express or implied, raised on any of the parties concerned in such a sale; neither on the part of the former owner, the defendant, nor the Sheriff) who is the mere organ of the law for transferring the right of the defendant. Caveat emptor, under those circumstances, is the best possible rule that can be laid down or adopted. Every one that goes to a Sheriff’s sale ought to take care and examine into the title of the defendant before he attempts to bid.” In Davis vs. Murray, 2 Const. Rep. 143, the Court (through Mr. Justice Cheves) recognizes this case as- settling the law of South Carolina that “Sheriffs’ sales are coupled with no implied warrantees.” If actual fraud has been practised at the sale by the defendant in the execution, it would constitute a good defence in an action to recover the difference between the two sales, as was decided in Minter vs. Dent, 3 Hill, 205; but in the plea there is no averment of fraud on the part of the defendant in the execution. See also Leger vs. Doyle, 11 Rich. 109-118.

These proceedings were instituted under the Act of 1839, p. 38, requiring the Sheriff to resell at the risk of the defaulting purchaser. The plea, substantially, is, that the defendant in the execution, James M. Rhodes, had no title to the land, because, although he was the purchaser at the sale by the Ordinary and had .complied with the terms of sale, the Ordinary had failed or omitted to execute a conveyance to him. This may be so, and would show that growing out of that transaction James M. Rhodes’ title was equitable and not legal. But this does not prove that James M. Rhodes may not have had a title aliunde. He may have been one of the heirs of the intestate, as whose property the land was sold by the Ordinary, or may have had an interest in some other way. This is an inquiry which the defendant, the purchaser under the execution, should have prosecuted before he made his bid. It is not suggested that there was any fraud, and without that he cannot in this form impeach the title or invalidate the sale. The rule is caveat emptor.

Whether, under the state of facts set forth in the plea, the defendant may not be entitled to relief in another forum, we do not undertake to say, nor to do more than determine that the demurrer was properly sustained, and that the appeal is dismissed.

Wardlaw and Inglis, J. J., concurred.

Appeal dismissed.  