
    
      BRASHEARS vs. BARRABINO & AL.
    
    Appeal from the court of the fifth district.
    After the sheriff has struck off property to the last and highest bidder, he is not to set it up again because another bidder claims the bid and offers to give more.
    
      Porter, for the plaintiff.
    This is a suit brought to annul a pretended sale made by Charpentier, sheriff of St. Mary’s, to Barrabino, of a tract of land, lying in said parish, and to have his possession of it quiet ed and assured.
    
      West'n District
    
      August, 1820.
    The history of this case is shortly this, judgment had been obtained by Desbois’s administrators against Brashears, the present plaintiff, execution issued on it : on the day of sale, Brashears attended by his agent and bid for the land ; it was striken off to Barrabino, the defendant, under the circumstances found by the jury, and the question to be decided by the court on that finding is, whether a sale by a sheriff, in the mode that this sale was made, is a legal one or not. If it be legal, we are divested of the property, if it be not, we must of course recover.
    Before the case is examined on its merits, a preliminary point is to be disposed of.
    A motion for a new trial was made, on the ground that the verdict was contrary to evidence, and that the jury did not answer, by their verdict, to the fourth fact submitted on the part of the plaintiff.
    The first ground taken will not now be insisted on, as all the evidence given at the trial was not taken down. The second reason urged in support of the motion is however correct, and the court, it is conceived, must on this point remand the cause, unless the defendants will consent that the verdict be amended.
    The fourth fact submitted is in these words. “Was or was not the bidding at said auction carried on by secret signs, on the part of Barrabino, the defendant.” To this question the jury answer “the bidding at said auction was carried on by signs, by Barrabino and Crow.”
    
    This, at first blush, is no answer to the question. They are asked whether it was not, carried by secret signs, on the part of Barrabino. They say in reply that it was by signs, on the part of both, refusing to say whether they were secret or not on the part of the defendant, and by doing so have deprived the plaintiff of all the benefit he would have had in the argument, from shewing a previous and secret understanding, between the sheriff and the purchaser.
    They have found too what was not submitted to them : that the bidding on the part of Crow, the plaintiff’s agent, was by signs. Why they went into this inquiry cannot be conceived. Had the plaintiff supposed that they were about to consider this, he would have been prepared on it, would have called testimony to explain it, would have argued and commented on it ; all these advantages he has lost, by the jury travelling out of the limits in which the question was submitted them. This point is surely too plain to require any further argument, and it is again, and with entire confidence, repeated that the cause must be remanded or the defendants must consent to have the verdict amended. The whole benefit which the law contemplates parties will derive from this mode of finding facts is lost, if the court will indulge juries in travelling out of the interrogatories propounded to them.
    But, to return to the merits : there are two modes of alienating property, one voluntary, the other forced. The latter is given by law under certain formalities, and these formalities, which it prescribes, must be exactly and strictly pursued : otherwise there is no alienation, Curia Philipica, juicio executivo, part 2, tit. Remate, no. 5, tit. 5, ley 52. Reeves vs. Kershard, 4 Martin, 513. Febrero cinco juicios, lib. 3, chap. 2, § 5, No. 352 & 357.
    The act of our legislative council (vide 2d Martin’s Dig. 170) directs the property seized under execution to be sold after certain delays, by public sale, and to the highest bidder.
    The jury here have found that Barrabino, the defendant, was the highest bidder ; but they have also found that, at the time the sheriff struck it off, the bid was claimed by Crow, who was agent for the plaintiff.
    They have also found that the bidding was carried on by signs on the part of Barrabino and Crow.
    And they (the jury) have also found that Crow offered to give 3500 dollars for the land, if the sheriff would put it up again, and that is a custom, in this State, when a bid is disputed to set up the article a second time.
    We contend on these facts that the plaintiff is entitled to recover. There is considerable difficulty in ascertaining what formalities are required by law, in ordinary actions to close the contract, between the parties. The counsel for the plaintiff have been laborious and faithful in their researches and have in vain sought for information on the subject from any book within their reach.
    As it respects judicial sales, an examination of our statute, and the ancient law of this country will enable us to show, that the sheriff was bound to set the property up again, when two persons claimed the bid.
    The act of the legislative council before cited (2 Martin, Dig. 170) provides that all sales shall be between the rising and setting of the sun, says nothing further with respect to the formalities that must be pursued, leaves of course all other provisions of our ancient law untouched and unrepealed.
    In the Curia Philipica, juicio executivo,p. 2, tit. 
      
      Remate, no. 4, it is declared that the adjudication shall be made in the ordinary form. But does not state what that form is. In the same work, however, comercio terrestre, lib. 1, ch. 15, nos. 27 & 28, see also Febrero juicio executivo lib. 3, ch. § 5, no. 327, it is laid down in express terms that when property is to be sold at auction the day and the hour of the day must be advertised and that until that hour is expired any new bid maybe made and must be received.
    Here there is a most important and essential formality, which was omitted, no time was designated by the sheriff, he chose his hour for sale, and chose the moment he pleased to finish it. It is not necessary to enlarge upon the scandalous abuses that must ensue, if these officers are not strictly required to obey and pursue this law. No man’s property will be safe, against whom an execution issues, if the sheriff without notice can begin a sale, at six o’clock in the morning, or within five minutes of sun set in the evening, and finish it when he chooses. The policy and wisdom of the laws of Spain on this subject are obvious and this honourable court is called upon by every principle of justice and public utility to santion and enforce them.
    
      The sale made here, we therefore contend, for want of this formality is null and void.
    It is null and void, we contend, on an other ground.
    The jury have found that, at the time of striking it off, the bid was claimed by two persons. Whenever this occurrence takes place at auction, more particularly at a forced one by the operation of law, as will be shown hereafter, it is the duty of the officer selling, as it is the custom throughout the world, to put up the property again, and this from the necessity of the case.
    Selling property by auction is in some measure a forced way of disposing of it, even where the owner places it with the auctioneer to be sold. This auctioneer or his agent cries it aloud, at the price which is offered, he strikes it off, when no more can be had for it than the last bidder has announced his willingness to give, and he designates who that last bidder is. No law points out how long he is to wait, in order to ascertain, if any more will be given. In common auctions, he sometimes pauses a longer, sometimes a shorter time, to know if more can be had. To limit the time indeed by legislative enactment, or positive regulation, would be perhaps impossible. But to guard against the abuse of such extensive power, the common sense of mankind in all countries has provided a remedy for the safety of both purchaser and vendor. That remedy is, that when the bid is claimed by two persons, the property must be put up again. Whithout this restraint upon auctioneers, both seller and purchaser would be at their mercy, they could dispose of the property at any moment during the crying that they thought fit, and favour whom they pleased to the great injury of all interested. This custom of putting the property up again, when the bid is claimed by two persons, the jury have found to exist in this state.
    If this is true in ordinary auctions, it applies with ten fold force to those that are commanded by justice to enforce her decrees. The officer is the agent and minister of the law, the property is sold from the necessity of the case, it is directed to be disposed of to the highest bidder, or in other words, when it is found that more cannot be had for it. What is meant by these words highest bidder. The highest bidder at any time the officer may chuse to strike it off ? No, the highest bidder that may present himself, until the hour is terminated at which (following the provisions of the Spanish law) he advertised the sale would close, or if he has advertised none, the highest bidder that may offer until the going down of the sun. What law gives him the privilege of choosing his time of exposing the property to sale, and closing that sale when he pleases? There is none, and it is confidently asserted, none, and it would be ruinous to society if he had such a privilege.
    But this is not the case, where the sheriff has closed a judicial sale before the time advertised, and another person besides the last bidder comes in and asks the benefit of opening it. The jury have found that, at the time of striking off, the bid was claimed by two persons. Why did he not put it up again ? He could not be ignorant of the custom existing in this state, and in all others, on contested bids ; no reason can be given, founded in either law or justice, why he did not ; and the only way left for us to account for it, is that he wished to favour the purchaser to whom he struck it off.
    But this was not a public sale, in the sense the law uses the expression. All the authorities in speaking of it, require the utmost publicity that the nature of the thing will admit of. Partida 5, tit. 5, ley 52, Curia Philipica, juicio, tit. Remate, no. 2. Here it was carried on by signs, on the part of Barrabino (for that part of the verdict, which alleges the same practice on the part of Crow, must be laid aside, as it was not submitted to the jury) contrary to the spirit and object of such a sale. Who, that has frequented auctions, does not know that the character of the person bidding has often great influence on the price of the article exposed ; that the emulation, which is excited by two or three persons offering for it, enhances the value ; and that a contest of several for an object calls in others ? All these advantages are lost to an unfortunate debtor : by permitting an early and previous arrangement with the officer, by which he is calling, in appearance, no man’s bid but his own, by sanctioning a course of proceeding which renders that private, which in its nature should be public, which makes that secret, that ought to be notorious, and by which one half of the benefits of publicity are lost. In Spain, so important is it considered that the last bid should be exactly known ; that if a purchaser offers a price for an article, under an idea that more had been already proposed than what in truth was, he is not responsible for the surplus between the real bid, and the erroneous one announced. Curia Philipica, Com. terrestre lib. 1, c 15, no. 31. Will the court sanction a course of proceeding here, so totally hostile to the policy of our law, so well calculated to introduce confusion, and which, in this case, has produced such ruinous consequences to the owner of the property ?
    
    
      But, if the law was otherwise than as we contend for, when the bids are open and public (but which by the way it is not) surely when they are secret, as here, and calculated to produce such mistakes, the sheriff should again have put up the property, when two claimed the bid.
    In Spain, the relations of the party, whose property is selling, are preferred to all others: in the same spirit of humanity, the debtor himself should have had the preference. Curia Philipica, juicio executivo, tit. Remate. § 22, no. 5.
    
    But, to conclude, if the court should not feel inclined to set aside this sale, on the general reasoning already urged, it is believed they cannot avoid doing so from the finding of the jury ; the verdict states that it is the custom in this state when a bid is claimed by two persons, that the article should be set up again. Custom, unwritten law, Partida 1, tit. 3, ley 4, where positive law is silent, takes place of and has the force of legislative enactment. Partida id. ley 6. Our own code has provided that the judge, in the absence of positive provisions, must decide according to natural law and reason or received usages. The case is then made as strong as if we shewed an act of our legislature, that whenever property at auction was claimed by two persons as their bid, it should be put up again, and on this, and what has been already urged, we confidently look for success.
    Brent, for the defendants.
    By a reference to the record and statement of facts made out in this case, the court will see that the defendant, Barrabino, holds the land, claimed by the petition, in virtue of a deed made to him of the said land, by the other defendant, Charpentier, the sheriff of the parish in which the land lays ; that said land was sold by said sheriff, in virtue of an execution, to satisfy a debt due by the petitioner; and that, at the sale of the land, the defendant Barrabino became the purchaser.
    
    It has been already decided by this court that the deed under which the defendant Barrabino holds is made in due form of law. 5 Martin, 190.
    In the court below, a judgment was given in favour of the defendants, from which the petitioner has appealed, and now urges that the judgment ought to be reversed, and remanded for a new trial.
    I. The petitioner wishes this cause to be remanded, for a new trial, because the court below refused the new trial, upon the finding of the fourth fact submitted, by the jury.
    The court will please to observe that Crow was the agent, representing the petitioner, at this auction, and bid for him.
    
    I do not conceive how the ingenuity of the gentleman can make it appear that this is not an answer to the fact. The jury is asked, if Barrabino’s bids for the land were not by secret signs? They answer that Barrabino’s and Crow’s bids were both by signs. Now, it appears to me that the answer of the jury finds the fact submitted, which is that Barrabino bid by signs, but not secret signs : nor could they have found differently, for if the signs had been secret, how could the witnesses have seen them ? Suppose the fact submitted had been whether Barrabino, bid by words at the auction, and the jury had answered that he bid by signs, would not this answer have negatived the bidding by words ? And would it not have answered the fact submitted ? So it is in the present case : the question asked, if the bids were by secret signs, the answer is that they were by signs. The jury are not sworn to answer the facts categorically, yes or no. The words of the act are the jury shall be sworn to decide the question of fact alleged and denied, and their verdict or opinion thereof shall be unanimously given, & c. Acts of the legislature of 1817, 32, sct. 10. So that the province of the jury is, to find the facts such as 
      
      they are proved, which they did in this case : that both the petitioner, by his agent Crow, and the defendant Barrabino bid by signs, and the not finding the signs to be secret, negatives that fact.
    But, says the counsel for the petitioner, they found that Crow bid also by signs, and that fact was not submitted to them. If the fact submitted was answered, the jury finding more than was submitted to them, can be no cause of setting aside the finding as to the fact that was submitted.
    
    Before the court would regard this case upon this ground, it must be satisfied that the answer, as contended for by the petitioner, would be material to his cause : if it would not, most certainly the cause will not be remanded upon that ground.
    But, as all the facts come up with the record and statement made out, it will be necessary for me to comment upon them, as the court will look into them and be enabled to ascertain the bearing that this objection of the petitioner could have upon the case, and also to ascertain if the finding of the jury was supported by the evidence.
    
    II. The law regulating sheriff’s sales, is to be found in Martin's Dig. 170. It is declared that the property shall be advertised for a certian length 
      
      of time, to be sold on a certain day and at a certain place. All this it is proven and it is also admitted, was done. It is also declared that the sale must be made between the rising and the setting of the sun. I need only refer the court to the statement of facts, to shew that all these formalities were pursued, and until the petition shews they were not, the court will presume they were.
    The petitioner’s counsel complains that the hour of the day was not mentioned, when the sale was to take place. By a reference to the statement of facts, it will be seen that it was, and that the sheriff began to cry the land at the time advertised, which was before twelve o’clock, and that he left the sale unclosed for the accommodation of the petitioner’s agent, until the evening, and that the petitioner by his agent then attended, and bid for the land. If the law does require that the hour of the day should be named, it is that the party interested might know when the sale should begin, that he might be enabled to attend, to watch his interests. The petitioner, in this case, cannot complain, because he was present by his agent, who in person bid for the land and thereby sanctioned the proceedings, and now, with bad grace, complains of the want of formality. But all the formalities required were accomplished. There is no proof to the contrary. It is only necessary to pursue to form pointed out by the aforesaid statute.
    III. What is the testimony as to the fact that two persons claimed the same bid and the land was not put up again ? What is the finding of the jury? The petitioner submitted this fact to the jury, viz : “were there not two bidders for the land, at the same price, at the time the sheriff struck it off to one of them, and was not the bid claimed by two persons.” The fact, as found by the jury, is “there were two bidders, but not at the same price, Barrabino (the defendant) being the highest and last bidder, at the time the sheriff struck it off.” Here the fact is found that, when the land was struck off, it was to the defendant Barrabino, who was the highest and the last bidder.” It is also found “that the bid was claimed by Crow,” but at the same time, that it was not his bid, but Barrabino’s, who was the last and highest bidder. This is a complete answer to this ground taken by the petitioner. Were the doctrines as contended for the petitioner to be recognized, they would be strange indeed, and would amount to this, two men bid for land at a sheriff’s sale, one bid higher than the other and the sheriff strikes off the land to the highest bidder, who is also the last : but when the land is struck off, the other repents and claims the bid and says he will have it; if put up again, he will give more. Perhaps he might, but the sheriff has already struck off the land, to the last and highest bidder. It is no longer under his control, it belongs to the person to whom it has been struck off and, without his consent, it cannot be put up again. The sale is complete as soon as it is struck off. The law says : “the sheriff shall sell the land to the highest bidder.” 2 Martin's Dig. 170. And the jury have said, in their facts found, that the defendant Barrabino was the highest bidder.
    
    But, says the counsel for the petitioner, the jury have found that when a bid is claimed by two persons, the custom in this state, at auctions, is to put it up again. I do not consider, this finding, if it were as stated by the counsel, could effect our case. But, the finding of the jury was not to the extent stated. The question asked them was “Is it the custom of auctioneers, in this state, when an article is struck off and claimed by two persons at the same time, as their bid, to put it up a second time?” The answer was “It is customary with auctioneers, in this state, when the bid is disputed, to put up the article a second time,” see Major Moore’s testimony. Here, the jury refer to the only testimony of Moore, to support this finding, and they find the custom at auctions. This finding of the jury was upon the testimony of Moore, who states such to be the proceeding of auctioneers in New-Orleans, &c. I am willing to admit it, for argument sake. It is known that, at these auctions, the bidding is so rapid and confused, that the auctioneer himself often does not know who made the bid, in so large a crowd ; he hears the same bid, but knows not the person, and when the article is struck off, he often calls out, whose bid was it?” Upon which, if two claim it, it is immediately put up, because it is not known who did make the bid. But if the auctioneer knew that one of the persons was the last and highest bidder and all who were present knew the same thing, the article would not be put up again, because a restless or dishonest man should think proper to assert that to be, which all present knew was not so. Which was the case here. It is proved that Barrabino was the last and highest bidder, all the witnesses present, who paid any attention to the sale, state it. The only one, who says that Barrabino was not, is Crow himself, the petitioner’s agent, who, to be made a competent witness received a release from the petitioner upon the trial (see record) and who certainly, until then had an interest: in as much, as he did not do that which he agreed to do, tor the petitioner, viz : to buy the land for him, and the circumstances, under which this witness gave in his testimony, which was positively contracdicted by several disinterested witnesses, must have induced the jury to throw aside his testimony entirely, and to give no credit to it, which. I am satisfied, this court will do also.
    The learned counsel intimates, that the sheriff, in this case, wished to favour the purchaser Barrabino.
    
    There is not one fact, to justify a suspicion, against that officer, whose integrity and impartiality, in the discharge of his various duties, have obtained him the esteem of all who know him.
    
      Davezac, on the same side.
    The facts found by the jury establish that tho’ there were two bidders at the sale, Crow and Barrabino, that they did not bid the same price : that Barrabino, to whom the land was adjudicated, was the highest and last bidder and that it is customary, with auctioneers, in this state, when the bid is disputed, to set up the article a second time.
    
      On the part of the defendants, we now contend, as we did in the inferior court, that no parol evi-dence ought to have been received. Barrabino presenting an authentic act of sale, which divested the plaintiff of all former title, and no fraud having been alleged or charged against the defendant, “no parol evidence could be admitted against or beyond what is contained in the act.” Civ. Code, 304, art. 252.
    The oppressive conduct of the sheriff, as alleged in the petition of the plaintiff, gave him no right to destroy the validity of an authentic act, by the aid of parol evidence. It is not insinuated that Barrabino knew of, or connived at, the pretended oppressions of the sheriff; he appears to have been a bidder acting in good faith, and purchasing, in full confidence, for a fair price, from a public officer, authorised to sell by a mandate from a competent tribunal. Improper conduct on the part of the sheriff (if any had been practised) gave to the plaintiff his right of action for damages against that officer ; but could not destroy the authority of the act under which we claim, even if we suppose that the sheriff had acted dishonestly (and no proof exists of his having done so) his act cannot prejudice an innocent, purchaser, acting with good faith, which the plaintiff does not even question ; but, if the court should not be with us, on that branch of our argument, we stand equally, certain of a favourable result. Previous, however, to the examination of the main question, it is proper to notice the exception taken by our adversaries. 1 Bac. ab. 90, 2 ac. on the case, id. 741, exec.
    
    It is difficult to conceive with what view it can have been taken. The petition alleges on the part of the plaintiff that the defendant, Barrabino, to whom the land, which he claims, was struck off, was not the last and the highest bidder.
    The defendants deny all the allegations of the plaintiff and aver that Barrabino, one of them, was the last and the highest bidder.
    That was the question of fact and, indeed, the only question to be decided by the jury. It is impossible to imagine by what course of reasoning the plaintiff arrived to the persuasion that this question was one “in which facts and law were mixed and which was besides impertinent and contrary to law.”
    The act of bidding at a public auction is a fact to be ascertained, when questioned or doubted, by the evidence of witnesses. I know indeed of no law which defines what bidding is, or what shall be considered as bidding ; but at any rate the act of bidding is a fact ; we may enquire how it was done, in what whether by the voice or by sign, but in whatever manner done it is an act, a fact.
    Now, for the inpertinence of the question, if I understand well the word inpertinence, it means a thing not belonging or relative to an other. Apply that definition to the present case. The plaintiff states that Barrabino was not the last and highest bidder, at the sale in which the land was struck off to him. The sheriff (one of the defendants) who sold the land, says that Barrabino was, he himself avers it equally. What is the question to be decided ? Was Barrabino the highest and last bidder, will undoubtedly be the answer. And this is precisely the question asked to the jury and to which the defendant has excepted, because it was impertinent and contrary to law. Contrary to what law? To that which forbids questions of law to be mixed with those of facts ? I have already shewn that there is in it nothing of law; that it is purely and totally one of naked facts. To that which orders that all questions submitted shall arise from the pleadings and be pertinent? We have shewn, we trust, both its natural derivation from the very words of the plaintiff’s petition, and from those of the , defendants’ answer, and also, that, so far from not being pertinent, it is the only question in the cause. We deem useless to add any thing, to this part of the argument for the defendants. The question was proper and pertinent, and the district judge did not err, in suffering it to go to the jury. If he did not err, on what ground can our adversaries expect to prevail before this tribunal ? Is it because the jury found that “it is customary with auctioneers, in this state, when the bid is disputed, to set the article a second time ? ”
    Supposing that custom to exist and to be in conformity with the law (for it will hardly be insisted that customs here operate a repeal of positive laws) have they shewn that there were two bidders, at the same time and for the same price ? The very reverse appears by the finding of the jury. There were, they have decided, two bidders, but not at the same price: Barrabino was the highest and last bidder, when the sheriff struck off the land. It is true, that the jury found that Crow claimed the bid, but what right had he to do so ? It was not his bid ; it was that of Barrabino.
    Is it because the jury have said that Bazile Crow “did say to the sheriff that if he would put up the land again he would give for it 3500 dollars?”
    What advantage can they derive from the finding of that fact, connected, as it must always stand, with that which declares that Crow was not the last bidder 
      and that Barrabino was ? What weigh can the court give, in the decision of this cause, to the tardy repentance of a man who, through his want of decision, had seen the object of his wishes pass in the hands of the decisive and persevering Barrabino ? He bid, while Crow was hesitating; he decided, while the other did not yet know his own mind. But like all men uncertain and infirm of purpose, he lamented, when it was too late and when the golden opportunity had been left to pass unimproved. Is a solemn adjudication, by the officer of a court, to be made void by the gossiping tavern talk of a garrulous old man, disappointed and insensed by his sappointment ? He said he would give more, if the land was put up again. But, it was sold to the highest bidder, after he had had a full opportunity of being that highest bidder.
    We deem that the finding of the jury must stand by itself, neither to be supported, weakened, nor destroyed by the written testimony accompanying it. But, should the court think otherwise, and believe that, when the evidence is sent with the finding to the supreme court, it may be examined, at least to throw additional light on the subject, be it so. We fear not that it should be resorted to, with that view ; they will see, the testimony of a witness describing the crowd assembled at the auction sale, the sheriff walking to and fro in the gallery of the tavern, and then crying for ten minutes the bid, which proved the last and the highest ; looking full in the face of the undecided B. Crow, and crying aloud: “two thousand dollars, Mr. Barbino's bid.” There was the moment, for B. Crow to speak and to come a little nearer to the mark, fixed by him, as the stopping ground : but not a word, not a sign, the land was struck off to Barbino ; then the regrets, the declaration that he would do better, if offered another opportunity. We can easily conceive this on the part of B. Crow ; but it is difficult to account, for the belief, entertained by the counsel of the plaintiff, that any thing of that kind can render a sale void.
    Porter, in reply. Before I proceed to reply to the arguments of the defendants’ counsel, it is proper, tho’ perhaps not necessary, to call the attention of the court to the fact that this appeal is taken from a decision of the district court, on facts found by the jury. This, of course, precludes an examination of the evidence on which those facts are found, except a motion is made for a new trial. To look into evidence, now would lead to endless confusion, and produce manifest injustice, as all the testimony was not taken down. The statement, alluded by the defendants’ counsel, is one that was made out, before the appeal was taken from the decision of the court, refusing to receive in evidence the deed from Charpentier to Barrabino, and does not embrace that give n on the last trial of the cause. If all the evidence came up, I should most certainly have moved this court to remand it for a new trial, and must certainly, I think, on such application, have succeeded. Even, as one of the defendants’ counsel says, if there was no other evidence than Crow’s, it would require more verdicts, than have been given yet, to convince any unbiassed mind that a person, sent to bid by the plaintiff, in order that the property might be saved for himself and family, would have suffered that property to be purchased by another. And that, tho’ the bidding was by signs, the negative testimony of witnesses that they did not see these signs, should outweigh the positive oath of a respectable man, that he had made the bid, at which the land was struck off. I should not have made these remarks, had they not been forced on me by the defendants’ counsel leaving the verdict and going into the evidence. But, I am not surprised that they wished to travel out of it, for it certainly does not authorise a judgment in their favour.
    
      The motion, to remand the cause, must succeed, as the defendants will not consent that the verdict shall be amended. The finding on the fourth fact, submitted on the part of the plaintiff, is most clearly irregular and illegal. It does not answer to the question propounded, and it finds a fact not submitted to them. It is said, how could the jury find the signs secret ? If they were secret, the witnesses could not have seen them. I say they could have found the fact, and without involving any such absurdity as the defendants’ counsel suppose. If, for example, a sheriff is seen, at an auction, to rise from time to time, on the price of property, and no by stander can tell where the bid comes from, nor whose it is, until the officer announces it, on closing the sale. I say it is necessarily carried on by secret signs, that is by signs known only to the auctioneer and bidder. It was this fact we wished answered ; as it would have gone far, to have shewn the secret understanding between the co-defendants in this suit and what was their intention from the first.
    Again, it is said, the jury are not bound to categorically answer yes or no. That depends on how the fact is submitted to them. Let us suppose, by way of illustration, that, on a suit brought to enforce the payment of a promissory note, this fact is submitted 
      was or was not A. B. the defendant forced to sign the note on which this action is brought ? To this they must answer he was, or he was not ; and it would amount to no finding to reply, A. B. signed the note. Still less would it be correct for them, on this simple interrogatory, to go on and say, C. D., the plaintiff, was also compelled to make his obligation to the defendant. Yet, this is what the jury have done here, in their answer to the fourth fact. I do not see, then, how the court can refuse to send back the cause, so that this fact may be fairly found.
    The first objection on the merits of the case is, that no parol evidence can be received to shew that the legal solemnities, required by law, have not been pursued, and in support of it the Civ. Code 304, (meaning 310) art. 242, has been cited. This law has no application that I can see to this case. It is a (well known) provision, that parties to an act cannot introduce parol evidence to change that act. But, what application this has to sales, made by a public officer, who is authorised to dispose of my property provided he does so with certain formalities, and whose act is attaked, because he has neglected them formalities, I am at a loss to conceive.
    
      Our law says that a judicial sale shall be set aside, if not carried on pursuant to certain solemnities. (See Partidas and other autnonties cited, in the opening of the cause) many of these solemnities, such as ad vertising it, selling it at public place in the country, and adjudicating it to the purchuser, when more cannot be had for it, are all, to use a common law term, matters in pais. If then, parol evidence cannot be introduced to prove a deviation from them, how can the fact be established ? Why never. So that, according to the ideas of the opposite counsel, our jurisprudence would present the curious spectacle of giving a remedy, and refusing all means to establish those facts, on which that remedy is accorded.
    They say, we cannot attack this act, unless we allege fraud. This is again confounding a party to a public act, with the individual who complains that his property has been sold contrary to law. It is true, that he, who attacks a public act to which he is a party, must allege error, or violence, or fraud, to have it annulled. But besides error, or violence, or fraud, the law says : a sheriff’s sale can be set aside for want of legal solemnities. There is no necessity then to allege fraud, when the want of these legal solemnities is a good ground for annulling the sale. Sheriff’s returns, are matter in pais, and may be contradicted. 1 Bibb, Pollard vs. Rogers, 475. TP he counsel here have taken another ground, that the purchaser is not reprehensible for irregularities in the officer, and have cited to that effect, Bac. ab. It is well, he turned his attention to the common law for authority to that purpose. He certainly would have searched a long time, in the laws of this country, before he would have found any such doctrine. I dismiss this idea then by merely refering the court to the authorities, cited in the opening of the argument, as I do not consider it respectful to discuss a subject, which has already received a solemn decision in this court.
    Again, it is urged that every thing must be presumed in favour of the sheriff’s deed, and that it was preceded by all the necessary solemnities. This I deny. It is for the party, claiming under such title, to make it out. See, on this point, Williams vs. Peyton's lessee, 4 Wheaton, 77.
    It was asserted, on the part of the plaintiff, in the opening of this case, that there are two modes of alienating property, one voluntary, the other forced: the latter being given by law, after the performance of certain solemnities, without which the sale is void, See authorities before cited,
    
      Now, if a third claims property, under the first mode of alienation, he must shew an act of mine disposing of it : my consent will not, nor cannot be presumed. If he claims it by the latter, he must shew that the terms and conditions, on which the law says I shall be forcibly deprived of it, have been complied with : otherwise he shews not that which by law stands in place of my consent. Besides, how can the plaintiff prove a negative ?
    These, I trust, are satisfactory answers to what has fallen from the defendants, on the points made by them. Let us now see, how those contended for by the plaintiff, have been met and answered.
    It was contended, that, by the law of Spain, which is yet in force in this country, the sheriff should have advertised the hour, as well as the day on which the property is sold. What is the answer to this? Why, first that the court is bound to presume he did so ; second, that, if the court will leave the verdict and look into the evidence they will see he did. This, however, cannot be done, and the counsel is in error, when he states, that the hour of sale was advertised ; no such advertisement was shewn, on the trial of the cause : if it had existed, it would have been produced.
    
      But, admitting for one moment, that it is to be presumed, he did advertise the hour of sale. What follows? Why, that this might be a good answer, if the sale was attacked for that informality alone, but than when, in this case, we prove that he refused to receive an other bid, he must shew a good reason why he did so. Namely, that the tune advertised by him had elapsed.
    No time then was advertised, at which the sale would close, the sheriff was, of course, bound to receive any bid that might offer, until the going down of the sun. The court is imperatively called on to sanction and enforce this principle, unless they wish to throw into the hands of these officers, powers of the most arbitrary and dangerous kind.
    It is contended that, as the plaintiff was present by his agent and bid, consequently, he has waved all illegality in the acts of the sheriff; this is something novel, and to say the least of it, very harsh doctrine. That, because a man sees another illegally disposing of his property and tries to prevent him, therefore he sanctions the proceeding which he wished to defeat. If, indeed, Brashears had succeeded in acquiring the property, it might have been said that his purchase waved the errors, and that having got the land, he could not complain of any irregularities that preceded his acquisition. But, as he failed in saving himself in that way ; as he was defeated in that, by the conduct of the officer; it is more than hard that he should be told, because you bid to acquire the property, you have protected me, in that conduct, by which I illegally deprived you of it.
    We now come to the last ground, taken by the plaintiff, that at the time of stacking off the land, the bid was claimed by two persons, that one of them offered to go 1500 dollars higher, if it was put up again, and that it is a custom at auctions, in this state, when a bid is claimed by two persons, for the auctioneer to expose it again for sale.
    To the law cited by the plaintiff, on this branch of the subject, the defendants have said nothing, presuming, I suppose, that, by the mode in which they would present the facts, they could deprive the law of any application to this case.
    The first ground taken is, that the sheriff could not put up the property again, because it was struck off to the highest bidder ; it was (say they) no longer under the officer’s controul ; without the purchaser’s consent, it could not be exposed again. It would have been more satisfactory to the court, if the counsel had cited some authority for this. The sale, he says, is complete as soon as it is struck off. This, I do not think at all established, by the quotation from Martin’s Dig. that the sheriff shall sell the land to the highest bidder. For the question still recurs what completes the sale. How long has the highest bidder a right to offer on the property. We contend any time before the going down of the sun, if the officer has not advertised a particular hour : the defendants contend any time the sheriff chooses. It is for this court to say whether hey will not require positive law, from the defendants, before they establish a doctrine so injurious to the best interests of society.
    May I add that the law never contemplated that the property of unfortunate debtors should be adjudged in the manner it has been done here. Its justice forces the sale ; the benevolence of its provisions has taken care that it shall not be sold, while more can be had for it, for that is the meaning of the words highest bidder, and the reason why the expression was introduced. If it was the reason, it is difficult to conceive that the sheriff had a right to close the sale at 2000 dollars, when, at the time of stacking it off, two persons claimed the bid, and one offered to go 1500 dollars higher ; that is certainly not, selling it when no more can be had for it but it is striking it off and stricking it off with a vengeance. Barrabino, therefore, was not the highest bidder, in the meaning of the law, because the same verdict which finds that fact, finds that an other person claimed the bid and offered to go 1500 dollars higher, and because the time for receiving bids did not expire until the going down of the sun, unless the sheriff advertised a particular hour, when the sale would close.
    
    But, how do the counsel reconcile the assertion that the property belongs to the highest bidder, the moment it is struck off, with the fact, that it is the custom at auctions, in this state, to put up property again, when two persons claim the bid?
    First, they call the attention of the court, that the finding of the jury was on Major Moore’s testimony, what that has to do with the question, I cannot perceive: as the act of the legislature 1817, p. 34, sect. 12, says : that the facts so found are conclusive on the party. It is immaterial then by what evidence the jury arrive at this result ; more evidence was not offered, because more was not necessary, it was only as a matter of form, any testimony was given to the fact, as it was as well known to the jury as it was to every man in the court-house.
    They next go into a statement in regard to auc
    
      tions at N.-Orleans, to shew the reason of the practicó there. If this statement is correct, then the custom would be “that when two persons have bid the same price, for an article, that it should be again put up at auction ;” there would not be any necessity of either law or custom for that doctrine. But, the jury have found “that it is customary with auctioneers, in this state, when the bid is disputed, to set up the article a second time. And a most beneficial custom it is. The reason it has been so universally introduced, as I stated before was, that it might operate as a check upon auctioneers, in favouring their friends, by striking off the article unexpectedly ; as a surety that the object exposed, should not be sold while more could be had for it. That, when two claimed the same bid, the exposing the article once more brought an increased price for it. This was the object of this custom, and without such restraint public auctions would be a mere farce, and the purchasers, and owners of the property equally the victims of the agent.
    Such a custom, it is said, would give dishonest men an advantage. What advantage ? That of entering into open and public competition with the other bidders and giving what was conceived the true value. I can see no dishonesty in that. But I can see , gross dishonesty in an agent (ordered to sell property and make the most of it) striking it off, before an other purchaser can declare himself, and refuse to put the property up, tho’ he knows that by doing so a great advance will be had on it.
    It is said, the sheriff is a respectable man ; this is not the place to argue a question of that kind : but it is quite clear that he might have given stronger proofs of it, than the act which has been attacked, in this cause, and by which he has gone, as far as in his. power, to make one man’s fortune and ruin another.
   Martin, J.

delivered the opinion of the court. The plaintiff seeks to rescind the sale of a tract of land of his, to one of the defendants, by the sheriff, under an execution, on the ground that the conduct of the latter was oppressive and illegal. That the land was not exposed and sold at public auction, as the law directs, at the time advertised, and was struck to the defendant, altho’ he was not the highest bidder, in opposition to the request of another bidder, who offered to bid 1500 dollars more.

The defendants denied all the allegations in the petition.

The following issues were submitted to the jury ; the two last by the defendants, the others by the plaintiff.

1. Has the plaintiff, a title to the land in question, and in what words is it expressed ?

2. Were, or were there not two bidders for the land, at the same price, at the time the defendant Charpentier, the sheriff, struck it off to the defendant Barrabino, and was it not claimed by two persons as their bid and who were those persons ?

3. Was or was not the plaintiff, by Crow, his agent, one of these bidders ?

4. Was not the bidding, at said auction, by secret signs, on the part of the defendant Barrabino ?

5. Did not Crow, tell the defendant Charpentier, immediately after he struck off the land to Barrabino, that if he would put it up again, he would give 3500 dollars for it ?

6. Is it, or is it not the custom of auctioneers, in this state, when an article is struck off and claimed by two persons, as this bid, to put it up a second time ?

7. Was or was not the land struck off to the defendant Barrabino, he being the last and highest bidder?

8. Did or did not the sheriff, in pursuance to said adjudication, execute a deed of sale to him, and if so report the deed by a reference thereto ?

The plaintiff objected to the seventh issue, as requiring from the jury a general verdict, as including a question of fact and one of law, and not being pertinent. The district judge overruled the objection and a bill of exceptions was taken.

1. The jury, on the first issue, referred to the plaintiff’s deed, annexed to the petition, and, as to the others, found that:

2. There were two bidders, but not at the same price : the defendant Barrabino being the last and highest, at the time the sheriff struck the land off ; the bid was claimed by Barrabino and Crow, who were the bidders.

3. Brashears was a bidder, tho’ Crow, his agent.

4. The bidding was carried on by signs, by Barrabino and Crow.

5. Crow told the sheriff, if he would put up the land again, Ire would give 3500 dollars for it.

6. It is customary with auctioneers, in this state, when the bid is disputed, to set up the article a second time.

7. The land was struck off and adjudged to the defendant Barrabino, he being the last and highest bidder.

8.The sheriff, in pursuance of the adjudication, made a deed for said land, which is annexed to the records.

The plaintiff moved for a new trial on the following grounds.

1. The finding of the second issue is not conformable to the question suomitted , as it states a material fact, not called for by the question, viz : that Barrabino was the last and highest bidder.

2. The finding of the second issue is contrary to evidence in this that it states, that the two bidders were not at the same price, at the time the sheriff struck off the land to one of them, and that Barrabino was the last and highest bidder.

3. The finding of the seventh issue is contrary to evidence, as it states that Barrabino was the last and highest bidder.

The district judge refused the new trial, and being of opinion “that the law and evidence were in favour of the defendants,” gave judgment for them The plaintiff appealed.

It does not appear to us that there is any force in the objection made by the plaintiff to the submission, to the jury of the seventh issue, and his counsel does not insist on it, in this court.

No new trial ought ever to be granted because the jury found a fact not submitted to them : the remedy, in such a case, being to disregard the fact.

As, according to the counsel, we have not a statement of facts, we cannot determine whether any part of the finding of the jury be contrary to evidence.

It is stated in argument, that a new trial was prayed for, on account of the insufficiency of the answer of the jury to the fourth issue, as the jury do not say whether the signs used by Barrabino, were or were not secret ones. Nothing, in the record, shews that the trial was asked, in the district court, on that ground. Altho’ we might, if the justice of the case required it, remand the cause for a new trial, notwithstanding the objection was not taken below, it does not appear to us that we ought to do it. Bids are often made at auctions, by a nod, without any impropriety, and the persons present have sufficient notice of a bid, on its being cried out by the sheriff.

The circumstance of Crow claiming the last bid as his own, could not authorise the sheriff to put up the land again, if the claim was groundless, as it appears to have been, since the jury found that Barrabino was the last and highest bidder : and that there were two bidders, at the time the land was struck off, but for different sums.

If Barrabino, as the jury have found, bid the highest, the other bidder, admitting it to be Crow, must have bidden less.

If we are to understand the jury to mean that, when a bid is disputed, even without the least ground, the property must be put up again, and the last and highest bidder divested of his right, the custom is a most unreasonable one, and therefore not binding.

There is neither, allegation or proof, of the neglect of the sheriff, in advertising the time of sale, in the manner required by law, and if he sold at another time, this must have been shewn by the plaintiff.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  