
    Lamborn vs. Moore.
    
      Jippeal from Harford county court. This was a special action on the case. The declaration stated, that the defendant, , (now appellee,) on the, 19th of August 1817, was sheriff of \ Harford county, and as such had sundry executions against ■ the property of the plaintiff^ (now appellant,) placed in his [hands for collection., and which were issued out of Harford t coupty court, op sunijry judgments tliei’ein rendered, against - the plain tiff, in. favour of a certain Buckler Bpnd, amounting > in the whole to about the sum of §4500, and which- executions the defendant had laid upon the plaintiff’s property, ■ and did then and there proceed to advertise the same fop. (sale at public yendue, to satisfy said executions, to wit, ; on the, said 19th of August aforesaid. And that thereupon, the plaintiff, in order to prevent his said property ; from being sacrificed and sold for less than its value, did- : then and there, at the time and place of said sale, agree '■ with a certain John Watson, to bid in said property for. :the plaintiff, and tq endeavour to ^btairj. from the defen-., dant, until the Monday then next following, to. pay the,, amount of the money due upon said executions. And the plaintiff averred, th^-t the said Wqtson, in conformity with said agreement, did at the sale aforesáid, bid in the said.property for him, and upon his account,'for the sum of §5000, as he understood, and then and. there verily believed. The plaintiff, further averred, that after the said sale was over, the defendant did. then and. there agree to give the plaintiff, and the said Wqtson, until the Monday then next following, to raise the. money and pay said executions. Yet the defendant, nef regarding his said agreement and undertaking, but intending, craftily and fraudulently, to deceive and injure the plaintiff in this particular, and to prevent the plaintiff from retaining said property, or from selling it for what it was fairly and reasonably worth, and of paying said executions out of the proceeds thereof, apd of retaining the balance for himself, but that the same might be held and retained by the said Wafson, by virtue of his bid, for a small part of its actual value, to the great prejudice and injury of the plaintiff, the defendant did then and there, at the county aforesaid, on the day and year last aforesaid, secretly collude with, counsel, advige and aid the said Watson, to hold said pro-i ■petty by virtue of his said bid, that thereupon and thereby they the defendant and Watson, might sell the same for á larger sum, to wit, for the sum of §8000, which had been ^offered for it previous to said sale, upbn their own account, ai‘.<l for their own benefit-, and share the profit thereof between them. And the plaintiff' further averred, that he did obtain the means of paying said executions to said Bond, for which the said property had been sold, by the time agreed upon with the defendant, and did apply to the defendant to receive the full payment thereof with the said Bond, and as he the said Bond had agreéd, and was willing and desirous to receive the same, and did require that the said executions should be discharged, and the property released; but the defendant then and there totally and absolutely refused to receivó the money for said executions, as the said Bond had agreed wutli the plaintiff', although thereto requested by the plaintiff and the said Bond, to whom the whole of the money on said executions was due, and to be paid over by the defendant? but the defendant did then and there claim said property, and hold the same for the said Watson, by virtue of his said bid at the sale aforesaid, whereby the plaintiff was deprived of the power of selling said property for a much larger sum which had been offered for it, and of benefit-ting himself with the balance thereof, after paying the executions aforesaid; but by reason thereof, he totally lost the same, land was otherwise greatly injured, and entirely broken up in his business, and rendered unable to pay his debts; and by reason thereof, was afterwards compelled to petition for the benefit of the insolvent laws of this state. And the plaintiff further averred, that the defendant after-wards did return the property sold to the said Watson, and satisfied said executions; and ihat the defendant procured himself to be made trustee of the plaintiff', for the. benefit of his creditors, and did afterwards proceed, at sundry times, to advertise all the plaintiff’s right, title and interest, in and to said property, for sale, at public auction, and after the said sale to the said Watson, and did fraudulently cause the plaintiff’s right and interest in said property to be sold for the sum of 8300. By reason of all which premises, the plaintiff had been greatly injured, and suffered great loss and damage, to wit, the sum of ¡SoüQü, ¿je, The defendant pleaded non assumpsit, t0 which there was a general demurrer and joinder. The-county court ruled the demurrer good, and that the defendant answer over. The defendant then pleaded not guilty?, and issue was joined.
    
      ■ ; ; : '■ A fu fa, on a Judgment obtained by B vs, L, wag placed in the hands of itf, a sheriff, and by liim laid upon the land L. At the sa.e, L perceiving* that the land would not sell for its rtal value at that time* entered into an agreement with W, that he should bid it off, for account of L, with the consent of M, to enable L thereby to gam time to raise the amount of the judgment* W did hid it oif f*r less than its value, with M’s consent, but conceiving the design of converting the pinchase to his own profit, entered into a fiaudulent agreement with if, to retain the land for their mutual advantage, mid then refused to relinquish it to Ly who had raised money enough to satisfy the amount of the judgment, in an action on the case by L vs. Af, the sheriff, for the ■breach of this a g ree m en t — Held, that the agreement was within the statute of frauds, and that ihe plaintiff could not Recover,
    
      ..At the trial the plaintiff proved the several matters staf«Hn his declaration; and the defendant proved, that the property,. mentioned in said declaration, was land and real estate-, and that the understandings and agreements in said declaration stated, had relation to said land and real estate, and to no other property; and also that the said.understandings and agreements were not; lior were either of them reduced to writing; or any mémófandum, or other writing, made of the same, nor was there any money paid for or on account of the same, or the said land, by the plaintiff, or by any one else for him, to the defendant; The defendant then prayed the opinion of the couvt to the jury, that the plaintiff was not entitled in law to recover. 'Which opinion the court, [Harison and Ward A. j.J gave. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court;
    The causé wás árgued before Buchanan, Ch. j. Earle, and Stephen, -J;
    
      Mitchell and Kennedy, fo.r the ÁppeÜant;
    feiied on the following points:
    1. That a special action on the case man be sustained against any person who, with a fraudulent intent, induoesthe plaintiff to confide in a third person, and intrust him. with his property, knowing at the time that such third. person intends to cheat him out of such property.
    2. That the property being lánd, the intervention of a parol agreement, ás one of the means of the contemplated, fraud, does, not vary the case.
    3. That the statute of frauds cannot bé interposed by the defendant to protect him in this casé.
    4. That it was a violation of the sheriff ’s duty to make the purchase, ás stated in the declaration.-
    5. ' That a debtor' under execution has a right to redeem, and it is not imperative on the sheriff to sell.
    On the first point, they cited Pasley vs. Freeman, 3 T. R. 51. Hamar vs. Alexander, 5 Bos. & Pull. 241. Eyre vs. Dunsford, 1 East, 327. Hart vs. Tallmadge, 2 Day, 
      381 Burton vs. Loyd, 3 Esp. Rep. 208; and Russell vs. Clark, 7 Cranch, 92.
    On the second point- — Rob. on Frauds, 104, 120.
    On the third point — Rob. on Frauds, 130, 135, 137. Strickland vs. Aldridge, 9 Ves. 519. Hamar vs. Alexander, 5 Bos. & Pull. 241; and Eyre vs. Dunsford, 1 East, 327.
    On the. fourth point — Mark vs. Lawrence, 5 Harr. & Johns. 64. Turner vs. Fendall, 1 Cranch, 136, 137. 1 Sellon’s Pr. 513. Davoue vs. Fanning, 2 Johns. Chan. Rep. 264, 269, 270; and Ex parte Bennett, 10 Ves. 381, 394. And
    On the last point — Edmunds vs. Watson, 7 Taunt. 5. 1 Sellon’s Pr. 525; and Simonds vs. Catlin, 2 Caine’s Rep. 61.
    
      It. Johnson and Gill, for the Appellee,
    relied upon Lamborn vs. Watson, (ante 252.) Elsee vs. Galward, 5 T. R. 148, 151. 1 Saund. 312, (note c.) 1 Chitty’s Plead. 133, 368. Boring’s Lessee vs. Lemmon, 5 Harr. & Johns. 223. Bull’s Lessee vs. Sheredine, 1 Harr. & Johns. 410; and Barney vs. Patterson’s Lessee, (ante 182.)
    
   Earle, 3.

delivered the opinion of the court. This is an action on the casein nature of a decei1,and is grounded on the facts alleged and provéd, that thelands of the plaintiff were sold by the defendant, as shériff of Harford county, under sundry writs of fieri facias, issued on judgments obtained against him by Buckler Bond, and bid in át a sum, greatly below their valué, by acértain fohh Watson, who, to prevent a sacrifice of his propérty, ánd gain time for the plaintiff, agreed with him to purchase the lands for his* benefit. That after the sale was over, the defendant agreed to give the plaintiff and Watson, until the Monday next following the sale, to raise the money and pay the. executions; that not regarding his agreement arid undertaking, but fraudulently intending to deceive and injure the plaintiff, he colluded with, advised and aided Vatson, to hold the property by virtue of his bid, that he and Watson might sell the same for a larger sum upon their own account, and for their own benefit, and share the profits between them; and that in execution of their fraudulent design, the defendant refused to receive the money for the executions offered to him by the plaintiff by the time agreed on, but claimed the property, and held the same for Watson by virtue of his bid, and afterwards returned the property sqM to Watson, and satisfied the executions.

The greater part of these facts were examined by thíá court, in deciding Lamborn and Watson at the last term! like this case it was m form an action, founded on a deceit: * but was clearly intended to recover damages for a fraud, in the nonper Form anee of What may perhaps be called a fair agreement between the parties. That agreement being á verbal one for the safe of land, was determined by the court to be within the statute of ffáuds, and by its operatioii, to be a Void contract/ and it Was 'decreed j that the attempt to recover for the fraud, subsequently conceived and practiced, in withholding an execution of the agreement/ was evasive of the statute, and could hot avail// Can this"actioir then, growing óüt of the same contract, be in law supported?

The defendant here Was not á contracting party .in the Agreement anterior to the sale, but he is charged with secretly Colluding with/ advising and aiding Watson, to hold the property by virtue of his bid, that they might sell the same for á larger sum on their own, account, and for theii? own benefit/ and share the profits between-them, and with retaining the .property sold to Watson, and satisfying the executions. This is the gist of the action, and is in substance thé sánie facts that formed the'ground work of the suit against Watson. Notwithstanding the fraud that supervened, the nonexechtioh of the agreement by him was pronounced not to be actionable/ and his Counsellor, how-fever reprehensible we think him, Cannot be exposed toi greater liabilities. To the adviser the same láw must be jneted as was meásured to the advised. They are in pari delicto, and a higher punishment ought hot to await the one than the other, áiid if the breach of Wat sorts contrae^ is unsusceptible of being enforced for oñé purpose, it should be so deemed for every purpose: Whatever abhorrence/ therefore, we may feel for the conciuct of Moore'/ as por* trayed in the record, we must decide, that the action against him is not supported.

There is one particular in which, this case niaf be said to differ.from that against Watson, although in our opinion it does not lead to a different result. Moore is chárgedí with violating his agreement, to give the plaintiff and Watson until the Monday following the sale to raise the money, and pay off the executions, and it was insisted.on the argument to be the foundation of this, suit But it evident iy cannot be so considered: .and from the complexion of the. case, is plainly an item of the deceptions conduct imputed to the defendant, as manifesting a disposition in him to aid Watson in defrauding the. plaintiff. If it was viewed, however, as a substantive ground of action, we cannot see how it could be made to support the plaintiff’s case. It is «otan undertaking to the plaintiff singly, but to him and Watson,■ and the latter at least was not for, exacting an ob - aervance of it.

We concur with Harford, county court in the instructions given to the jury, and affirm the judgment.

JUDGMENT AFEIKMED.  