
    
      A. W. Yongue, sheriff, v. James Cathcart.
    
    Although the report of the evidence be calculated to raise doubts of a fact upon which the jury have passed, their verdict will be permitted to stand if no other - objection exists.
    Where the Sheriff brought an action to recover from the first purchaser the difference between the sum first bid and the sum obtained at a second re-sale, on appeal it was held that the action could not be sustained, because, at the last re-sale, the Sheriff had failed to make proclamation that' he was re-selling at the risk of the first purchaser.
    
      Before Mr. Justice Withee.s, at Fairfield, Fall Term, 1847".
    This action was brought to recover the difference between the first sale to the defendant of a tract of land, and the price finally obtained for it, upon a re-sale, by the Sheriff.
    With due authority, and in a regular manner, the plaintiff, then being Sheriff, exposed to sale, on the first Monday in February, 1844, eight hundred and fifty-nine acres of land, belonging to the estate of Thomas Lumpkin, deceased. On that occasion the defendant was the highest bidder, and the land was knocked down to him accordingly, at the price of $2650.
    On the same day and occasion, Cathcart and one William L. Pickett came together into the Sheriff’s office, and Cath-cart said to Yongue, the Sheriff, that Pickett had taken his bid. Yongue said, “very well; I am willing to make titles to whoever pays me the money.” Cathcart’s name, however, was entered in the Sheriff’s Book as the purchaser, whether on the same day or a short time after the sale, the witness (who was the Sheriff’s clerk,) was not quite positive; he thought a little afterwards.
    Pickett went into possession of the land, and worked it a year. Sometime after the sale he paid to the Sheriff, Yongue, $700, on account of Cathcart’s bid. (The entry in the sale . book will be produced.)
    Before Yongue went out of office as Sheriff, he advertised the land for re-sale, at the risk of the former purchaser. But it was re-sold by Cockrell, liis successor, in pursuance of such advertisement, on sale day in November, 1844, on which occasion it was knocked down to the same William L. Pickett at $2000.
    He failed to pay the money, and the land being again advertised to be re-sold “at the risk of the former purchaser,” was accordingly re-sold on the sale day in February, 1845, to John Mobly, for $835, who paid the said sum, and received titles.
    Mr. McDowell said that “Cathcart attended the first resale, and caused the land to be run up to $2000 — and requested me to look to his interest in the matter. When the land was offered at the second re-sale, I attended, in view of Cathcart’s interests. The Sheriff stated he offered it at the risk of the former purchaser, William L. Pickett, naming him. At the first sale Pickett was supposed to be in good standing. I think I would have run the land higher if Pickett’s name had not been announced as the defaulting purchaser.” Cockrell did nofiremember that he announced the name of William L. Pickett, but he said he intended him by the term “former purchaser,” for he was in fact the former purchaser from him. Mr. Mickle was present at the last resale, and though he does not know, yet he thinks Pickett’s name was announced as the last purchaser; at any rate, he so distinctly understood. Peay, also, said that on the occasion of the first sale, when Cathcart bid off the land, he heard Pickett offer Cathcart $50 for his bid, who agreed to accept it, and Pickett was to have three years to pay the money in: though he did not know the contract was ever carried out-saw no money paid, nor writings executed. In 1844 it was supposed Pickett was in tolerable circumstances; at the time of the sale (he meant, perhaps, the first-,) he had a good practice as a doctor, tie became insolvent, and none of his property is now here. It appeared that Pickett had left the State. Cockrell said the first re-sale was at the risk of Cathcart, and he might have made the land bring more than Mobly gave, for $835 was quite an inadequate price for it.
    Such was the testimony.
    The Presiding Judge says: By the A. A. 1839, (which, however, I have not before me,) it is required that the Sheriff, unless otherwise directed by the plaintiff in execution, shall, where the purchaser does not comply with his bid, proceed to re-sell on the nexfsoXe day, announcing the re-sale to be at the risk of the former purchaser. It will be remembered that the property was not re-sold at the next succeeding sale day.
    I submitted to the jury the following enquiry and proposition : Did Yongue, on the occasion of the first sale, accept William L. Pickett in the room of Cathcart as the purchaser? If he did, then Cathcart was discharged from that obligation which his bid created. In solving this question, their attention was directed to the circumstances that though Cathcart’s name was entered upon the book as the purchaser, yet Pickett went into possession of the land, had paid $700 towards the purchase, he was allowed to remain in undisturbed possession for a period extending beyond the next succeeding sale day: Did or did not this conduct and acquiescence indicate that Pickett was the accepted purchaser ?
    If this, however, was resolved against Cathcart, then did any thing done by Cockrell, the succeeding Sheriff, release Cathcart? I held that when the land was first offered by Cockrell and bid off by Pickett, who wholly failed to comply with his bid, and to whom no title was made, the transaction was an empty one; it was, in fact, no sale to another purchaser, and the parties remained in statu quo. Then the question was, did the sale to Mobly, which was a real transaction, carried out, release Cathcart? There was no room for doubt that Cockrell at that time intended to sell at the risk of Pickett, and that he said so ; fpr so Mr. McDowall remembered. I said to the jury, that while I would not announce the doctrine that an actual deception practiced on Cathcart or his agent by naming Pickett instead of Cathcart as the defaulting purchaser, should not avail Cathcart; yet I thought that, as a legal proposition, the transaction did not release Cathcart, if he were liable up to that time. Cockrell sold at the risk (so he said) of Pickett as the defaulting purchaser, and the only one, from him — and I saw no legal reason why any liability of Pickett, as a defaulting purchaser, to Cockrell, should operate to discharge a previous liability of Cathcart to Yongue, m the same character. I did not perceive why any number of defaulting bidders should not be held each liable.
    I held, finally, that the provisions of the Act of 1839, above referred to, were directory to the Sheriff — and though not in this case complied with, yet I thought the sale to Mobly valid; and that the provisions of that Act were not intended for the protection, convenience, or advantage of the defaulting purchaser. The great object was to secure for the creditors the amount of the first bid; and if Pickett had not been taken for the first bidder, I thought the latter might be held liable, on this occasion, for the difference. The jury found a verdict for the plaintiff, accordingly.
    The defendant appealed, and moved the Court of Appeals for a new trial, on the following grounds, viz:
    1st. Because the plaintiff had, as appeared from the evidence in the case, accepted Dr. William L. Pickett as the purchaser of the land referred to in the pleadings and evidence in the case, in the lieu and stead of the defendant.
    2d. Because the second re-sale of the land, on account of which the defendant is now sued, at which it was so re-sold, at the risk of Dr. William L. Pickett, operated as a complete and full discharge of the defendant from all legal liability on account of his supposed purchase of the said land.
    3d. Because the course and manner of proceeding on the part of the plaintiff and his agent or agents in the re-sale of the said land, operated as a complete surprise on the defendant, and if the verdict were permitted to stand, would at least • operate as a legal fraud on the defendant.
    4th. Because the Court charged the jury that the defendant James Cathcart’s legal liability could be fixed and determined by a re-sale of the land, when such re-sale was expressly made at the risk of one Dr. William L. Pickett, a former purchaser, "and not at the risk of the defendant, in which it is submitted there was error, as will appear from the Act of 1839 — and the more especially so, as the said resale did not take place within the time prescribed by the said Act of Assembly of 1839.
    5th. Because the re-sale of the land was illegal and void, not having been made within the time prescribed by the Act of 1839, which ground was strongly urged by the plaintiff’s counsel in the Court below, which re-sale could not, therefore, affect the defendant’s rights.
    D. McDowell and A. W. ThomsoN, for the motion.
    Boyce, contra.
    
   Wakdlaw, J.

delivered the opinion of the Court

The first ground of appeal presents a question of fact, as to which, notwithstanding doubts which the report of the evidence is calculated to raise, the verdict would be permitted to stand, if no other objection existed.

• Other grounds of appeal suggest objections to the regularity of the re-sale, and to the views taken by the Circuit Judge, all of which have come under consideration although it will not be necessary now to make an authoritative decision as to all.

The action is brought by the Sheriff himself, to recover from the first purchaser the difference between the sum first bid and the sum obtained upon a second re-sale. The Sheriff, perhaps, is supposed to represent creditors here: however that may be, he is personally interested. He might, in an action for the price of the land, brought against this defendant, Cathcart, have recovered the sum first bid: in which case, Gathcart would have had the land. Or, if Cathcart were not solvent, or the Sheriff, of his own head or by instruction, chose to resort to the statutory remedy by re-sale, he might have done so, and in that case, if he had proceeded regularly, Cathcart would have lost the landf as he has done, and ■ would have been made liable for whatever sum might have been lost by the re-sale.- But if-the Sheriff has taken away the land so that he cannot recover the price from Cath-cart, and by his default or irregularity has lost the statutory remedy, he is himself liable to creditors for the difference of the sales, which he here seeks to recover. The case is then one in which the Sheriff most show that he has pursued, with sufficient regularity the directions of the statute, which gives the remedy he seeks for his own advantage or relief: and one in which the defendant is not a third person objecting to the regularity of proceedings which the parties do not complain of, but is himself a party to the re-sale — the pro^ ceeding under which his liability is sought to be enforced, and may well complain of any irregularity by which loss has been brought upon him.

The 58th section of the Sheriff’s Act of 1839 provides that “if the purchaser shall fail to comply with the terms aforesaid, the Sheriff shall proceed to re-sell, at the risk of the defaulting purchaser, either at the same or some subsequent sale day, as the plaintiff may direct: and in the absence of any direction by the plaintiff, the Sheriff shall re-sell on the same day, if practicable, and if not, on the next succeeding sale day, making in every such case proclamation that he is re-selling at the risk of such defaulting former purchaser.”

Here the Sheriff has shown no directions from the plaintiff in execution, yet instead of re-selling on the same day when the first sale took place, or, if that were not practicable, reselling on the next succeeding sale day, he, without any explanation given, forbore to re-sell for nine months; and then, after the intervention of two terms, he re-sold at the risk of the first purchaser, who took care of his interests by running the land up to a sufficient price before it was knocked off to a second purchaser. No second re-sale on the same day, or on the next sale day, or the next after that, warned the first purchaser that the second purchaser had .not complied with his bid: but after the lapse of three months from the first resale, just a year after the first sale, another re-sale was made at an inadequate price, the proclamation being that it was made at the risk of Pickett, the second purchaser, or perhaps at the risk of the former 'purchaser, meaning Pickett. In all this there- was much' irregularity. If the Sheriff can, without directions from a plaintiff in execution, delay a resale beyond the time prescribed by the statute, what shall be the limit of his discretion 1 If he can do so as to an article stationary in price, what shall restrain him in respect to an article the. most fluctuating 1 But upon delay alone the Court is not agreed, and there may have been directions of a plaintiff to authorize it.

Doubt has been felt whether the statute authorized more than one re-sale — especially whether any second or other resale must not be on the same day as the first sale, the Sheriff regarding no re-sale as an effectual one which does not produce the cash. Perhaps the better opinion is, that if the Sheriff conduct himself concerning a re-sale as he would do concerning an original’ sale, with the additisnal requisite that he proclaim that he is re-selling at the risk of the former purchaser or purchasers severally, naming him or them, he may re-sell toties quoties, until a bid be paid in cash: and that all the defaulting purchasers, according to their bids, will be liable — they perhaps having a right to regulate liabilities between themselves so that the last may be ultimately liable according to his bid.

The matter, however, which the Court conceives of most importance in this case, is^ that at the last re-sale no notice seems to have been given by proclamation that it was made at the risk of Cathcart, the first purchaser: acCordiiig to our view of the testimony the notice was such as to exclude the idea of risk to him. This was a material departure from the terms of the statutory remedy. If the proclamation as required was not made, a condition, upon which the rights claimed by the Sheriff depend, has not been performed, and the liability which the action assumes has not attached to the defendant. The terms of the statute are plain: even if they be said to be only directory to the Sheriff, the Sheriff must obey them, or lose rights which they give-. It may easily be imagined-how, in other cases, losses to purchasers, greater than that which the defendant has sustained here, might result from a Sheriff’s neglect to make the proclamation só as to warn the purchaser of the risk he was to be subjected to.

There was error then in holding that the defendant' could not make objections to the regularity of the re-sale. If, as now seems, there was concerning the proclamation an irregularity by which the defendant has been misled to his loss, this action cannot be sustained.

That the-facts may be again investigated, and the other points of law besides the one which has been decided, be again examined, a new trial is ordered.

RichardsoN, J. O’Neall, J. Evans, J. and Withers, J. concurred.

Motion granted-.  