
    
      Seth Daniel v. Wm. J. Harley.
    
    The sheriff cannot be made liable on his contract of sale, without the proper entry in his sale-book, required by the sheriff’s Act of 1839, or such a clear and explicit admission in writing as will stand in place of such entry.
    
      Before O’Neall, J. at Barnwell, Fall Term, 1847.
    This was an action of assumpsit, brought against the ex-sheriff, to recover the difference between the sale and re-sale of eighteen slaves, sold as the property of James M. Loper, and purchased by the plaintiff.
    The defendant’s advertisement of the sale of 38 negroes, the property of James M. Loper, for sale-day, in October, 1842, was given in evidence. There was no entry of the sale in the sheriff’s book. It was proved by a written admission of the defendant, that $638, the purchase money of eighteen slaves, the property of James M. Loper, sold by him, and purchased by the plaintiff, had been tendered to him by the plaintiff, before aetion brought. The slaves were re-sold November, 1842, sale-day, and from the entry in the sheriff’s book, it seemed that they sold for $3,630. The difference, $2,992, was claimed by the plaintiff. When the plaintiff closed his case, the defendant moved for a non-suit, on the ground that there was no sufficient evidence of the sale, to take it out of the Statute of Frauds. The Circuit Judge thought the admission of the defendant was enough, and therefore refused the motion.
    In the defendant’s defence, it abundantly appeared, that from the belief that James M. Loper, under the will of some person from whom he received the slaves, had only a life-estate therein, the defendant offered only the life-estate, and required the purchasers to give bond for the return of the property on the falling in of the life-estate, and in the mean time, that the slaves should not be carried out of the State, ■ or abused. These terms were proclaimed by the sheriff, J when his sale was.commencing. In the progress of the sale, Col. Condy, who was present, and who became a purchaser, asked — “ L)o you sell all Loper’s interest?” The defendant said, “Yesmeaning, however, as one of the witnesses said, no rmre, still, than that he sold the life-estate. For that was all the estate which it was supposed Loperhad. Col. Condy purchased one or more of the slaves, and after some-controversy with the sheriff, in which he claimed the absolute estate, he gave the bond required by the sheriff’s terms. The sheriff, soon after the sale, discovered that Loper had an absolute estate. He (the sheriff.) required the plaintiff to give the bond which his terms had required. He (plaintiff,) was unable, or refused to do so ; and the sheriff re-sold, on sale-day, in November, 1842, for the sum already stated.
    The jury were instructed that the sale was good, unless it was avoided by mistake or fraud. His Honor said there seemed to him nothing from which fraud could arise, unless it might be that some implication thereof could be made from the gross inadequacy of price. There was, however, nothing in that which could avail the defendant. For his sales were accompanied, uniformly, with more or less sacrifice. Was there any mistake? It was manifest that the sheriff sold a less estate than that which the debtor had.— This was clearly the result of mistake. He said he thought the sheriff might sell, when neither debtor nor creditor objected, a less estate than that which the debtor held, and that he might superadd such terms as he did on this occasion.— That he thought the proof was not at all inconsistent with the sheriff’s advertisement, for that did not define the estate intended to be sold. If even the sale were good, the plaintiff, he thought, in failing to give boud, as required by the terms, and as demanded from him by the sheriff, had forfeited his contract, and was not entitled to recover. The jury found for the defendant.
    The defendant renewed the motion for a non-suit, on the ground taken in the Court below, to wit: that there was no sufficient note or memorandum, in writing, of the bargain of the sale in question, to take the case out of the Statute of Frauds.
    The plaintiff also appealed and moved for a new trial, on several grounds, which it is unnecessary to specify, as the motion for a non-suit was, alone, considered by the Court.
    
      Carroll & Wardlaw. for the motion.
    
      Bellinger & Hutson, contra.
    
      Dud. R. 142.
    Acts or ’39, p. 27.
    i 407.
    At 410.
    
      Copy of Defendant's Admission.
    
    It is admitted that Seth Daniel has tendered to me the chase money, being six hundred and thirty-eight dollars, for the eighteen negroes which he bid off at sheriff’s sale, last sale day, at this place, sold as the property of James M. Lo-per, and named as follows: Viney, Serene, Viney, Hannibal, Julia, Charles, Jinsey, Hetty, Jack, Cynthia, Handy, Civility, George, Caesar, Lucy, Georgiana, Spencer and Letty. The said purchase money has been tendered to me several times, and he has offered to comply with the terms of the sale, by paying for and taking the property. But I have been notified not to comply with the terms of sale on my part, on the ground of inadequacy of price at which the property sold, and that Loper had an absolute estate — and therefore have hitherto refused to comply. W. J. Hahley.
    3d November, 1842.
   O’Neall, J.

delivered the opinion of the Court.

As the motion for non-suit must, in the opinion of this Court, prevail, the ground taken in that behalf will alone be considered.

In the case of Carter v. Bennett, it was held that an entry by an auctioneer, (or more properly speaking, by a vendue master,) in his book, under the 6th section of the Act of 1785, is sufficient to charge a purchaser, and that such contract, thus evidenced, is a compliance with the Statute of Frauds and Perjuries. The Act of ’39 concerning the office, duties and liabilities of sheriffs, proceeding upon the idea which had been suggested by the Vendue Master’s Act of ’85, provides in the 4th paragraph of the 6th section, for the keeping of a sale book by the sheriff, in which are to be “ transcribed all levies (“ specifying the property, and date of each levy,”) and all advertisements of property levied on,” “ and the parts of the said book, in which accounts of sales shall be kept, shall be divided in separate and suitable columns, in which the sheriff shall enter the names of the parties, a description of the property sold, when, sold, to whom sold, amount of sale,” <fcc.

The case of Cristie v. Simpson held such an entry, although not made at the moment of sale, a compliance with the Statute of Frauds. In it the observation is made by my brother Wardlaw, “ the office book is the evidence required by lawand generally, I think, it may be said, that without an entry, in such book, a purchaser could not be charged; and so too, without it, the sale could not be enforced against the rights of the creditors or debtor. -It may be, however, that as against the sheriff alone, the sale on his clear and unequivocal admission, in writing, of everything required by the law to be noticed, in the sale book, would be enforced. In this case, however, the sheriff stands for the creditors; he re-sold, and applied the proceeds to their debts. The action, here, is to take from them, through him, this fund. So far as they are concerned, they can demand the entry in the sale book, and on the non-production of it, the claim to enforce the contract is at an end.

The admission, signed by the defendant, cannot, however, charge him. For it does not set out the levy, advertisement, nor certainly the character of the estate, sold by the sheriff; indeed, from the terms used, it would seem that he meant to say, in this paper, “1 sold only the life estate, in the negroes, and as you claim more, I will not comply with the sale, as you understand it.” It is true, that if the paper had merely contained the admission of the sale of the negroes, at sheriff’s sale, and nothing had been said about the ground on which he refused to comply, that then the legal implication would have been, that the absolute estate had been sold.— But it is our duty to read the whole paper, and give it construction in all its parts. Thus reading it, in connection with the evidence of what actually took place, at the sheriff’s sale, there is no difficulty in understanding that the defendant meant to say in it, “ I sold only the life estate of Loper, you claim the absolute estate, and therefore I will not comply.” It is, therefore, not such a clear and explicit admission, as will stand in place of the entry required by the Act of ’39.

There can be no doubt, that if the sheriff refuses or neglects to make the proper entry, in his. sale book, of a sale made by him, and thereby the purchaser sustains injury, that m such case, he would be liable, in an action on the case, for the damages. But he cannot be made liable, on the contract of sale, without the proper entry, or an equivalent admission in writing.

The defendant’s motion for a non-suit is granted.

Evans, J. — Frost, J. — and Withers, J. — concurred.

Richardson, J.

dissenting. There are so many evil consequences, inevitably following, if a sheriff be allowed to resell the property he has before sold, because he was ignorant at the first sale of the true title of the owner, that I cannot concur in the opinion sanctioning..such a practice in this instance. The sheriff is the agent of plaintiff and defendant, and the auctioneer to sell and transfer the defendant’s possession, and apparent property, to the highest bidder, be the legal title what it may. If the supposed owner has no title, the bidder loses his money. “ Caveat emptor” is the rule of law. But in like manner, if the defendant has- a qualified or- full title, it passes to the purchaser. The rule works both ways, equally and fairly. In the present case there is no doubt of the sale, or of the proper conduct of Seth Daniel, the highest bidder; and the only question is, whether there has been sufficient evidence of the sale to satisfy the Statute of Frauds, which requires written evidence of it, when there has been no delivery of the property sold.

What is the written evidence in this instance ? It is as follows, to wit: “It is admitted that Seth Daniel has tendered to me the purchase money, being six hundred and thirty-eight dollars, for the eighteen negroes which he bid off at sheriff’s sale, last sale day, at this place, sold as the property of James M. Loper, and named as follows: Yiney, Serena, Yiney, Hannibal, Julia, Charles, Jinsey, Hetty, Jack, Cynthia, Handy, Civility, George, Caesar, Lucy, Georgiana, Spencer, and Letty. The said purchase money has been tendered' to me several times, and he has offered to comply with the terms of the sale by paying for and taking the property. But I have been notified not to comply with the terms of sale on my part, on the ground of inadequacy of price, at which the property sold, and that Loper had an absolute estate ; and therefore have hitherto refused to comply. W. J. Harley.” •

This written instrument appears, to my understanding, to constitute a full, intelligible and candid statement of the actual sale of the negroes to Daniel ; of his offer to comply, and of the sheriff’s refusal for certain reasons ; as if intended to clear the case of the statute; and to put it to the judgment of the Court upon its merits exclusively.

But the reasons of the sheriff for not complying, to wit: that Loper had an absolute title to the negroes, and Daniel' bought them too cheap, are entirely insufficient in law for such non-compliance by the sheriff. Suppose Loper had no title at all j yet Daniel would have lost his money, in virtue of the rule of “ caveat emptor” just laid down. So now, e converso, he cannot be deprived of his good bargain ; and especially at the will of the sheriff.

Waudlaw, J.

I join in dissenting. I think the memorandum was sufficient to charge the sheriff himself, although it was not made at the time of sale or in his book ; as even his answer to a letter, stating the particulars of the contract, would have been.

This memorandum contains all necessary particulars — the seller, the purchaser, the property sold, the price, the time and place of sale, and the terms of sale, as they are by law understood from the words “ sheriff’s sale.” The mention of absolute estate, may suggest that the sheriff, under some misconception, supposed that he had sold something less: but whatever he may have supposed, he sold whatever interest the defendant in execution had in the property which was the subject of sale, and was exposed to the view of bidders.  