
    [Chambersburg,
    October 24, 1825.]
    BUCHANAN and another against MOORE.
    1ST ERROR.
    If a defendant, at the time of a sale of his lands by the sheriff, represent to the purchaser that certain land is included in the levy, the land passes in equity to the purchaser, though it was not actually included in the levy, provided the purchaser was acting innocently.
    After a sheriff’s deed to such purchaser, the defendant is not entitled to call on him to give up the sale, on the ground that part of the land sold was not included in the levy, though he tender sufficient to cover his expenses.
    Error to the Court of Common Pleas of Cumberland county, where a verdict was rendered in favour of the defendant in error, the plaintiff below.
    The action was ejectment by the defendant in error and plaintiff below, John Moore, against Buchanan and Strong, to recover a tract of land in Newton township, Cumberland county, which the plaintiff claimed under a sheriff’s deed to him in 1806, made in pursuance of a sale under a venditioni exponas. The chief point in dispute at the trial was, whether or not this tract was included in the levy previously made on the lands of Bucnhnan, by virtue of a fieri facias against him, or constituted a separate and distinct tract not included in the levy, and not passing by the sheriff’s deed. The plaintiff gave in evidence declarations and representations made by Buchanan at the time of the shériff’s sale, in which he alleged, in the presence of the plaintiff and others, that tire land in dispute was included in the levy, and that he bought under that impression. The defendants proved, that within a few months after the completion of the sale and deed executed, and before Moore had expended any money in improvements or repairs, or incurred any expense but the purchase money and costs of the sheriff’s deed, Buchanan offered, if he would relinquish his purchase, to refund to him the purchase money, and pay him one hundred dollars for his trouble, which Moore refused.
    The defendant requested the court below to charge, among other matters, as follows:
    5th. If at the time General Buchanan made the alleged declarations and representations respecting the quantity of land levied, he made them under a belief that the land in dispute had been included in the levy, he would not in equity be hound to give up the same to the plaintiff, under such circumstances.
    6th. If the jury find that both Moore and Buchanan, at the time of the sale, believed the land in dispute was included in the levy made by the sheriff, when, in truth it had not been so included; and that within a few months after the sale, and before Moore had expended money in improvement or repairs, or incurred any expenses other than the payment of the purchase money and the costs of the sheriff’s deed, and that Buchanan offered bona fide to refund the said purchase money to the said Moore., and pay to him one hundred dollars over and above for his trouble, if he would relinquish his purchase, and that if the said Moore refused to accept of the offer, then the said Moore could not in equity "laim the land in dispute.
    Charge of the court:—
    
      Point 5th. If the levy in its terms were such as might reasonably include it, and it was represented at and before the sale to be included by General Buchanan, and on the faith of such representation, John Moore became the purchaser, Buchanan, under such circumstances, would be bound by his representations, not otherwise.
    6th. Although the levy was not intended to include the land in dispute, if in its terms it might fairly be construed to include it, and both Moore and Buchanan believed it was included, and it was so represented by Buchanan before and at the sale, then by the purchase the right to the whole vested in the purchaser, and under his deed he was entitled to the possession, and that right could not be impaired by any offer of Buchanan to repay the purchase money, and to pay Moore one hundred dollars for his trouble.
    To this charge the defendant excepted, and the jury found a verdict for the plaintiff.
    Errors were now assigned in the answers of the court.
    
      Carothers, for the plaintiffs in error,
    relinquished his objection to the answer to the fifth point; but insisted that the court did not answer correctly the sixth point, which was, that if the levy did not include the land in dispute, and Buchanan, supposing it to be included, represented it so to the plaintiff, then, if he after-wards offered to indemnify the plaintiff for all costs and expenses incurred in consequence of the purchase, the plaintiff ought not to recover. The plaintiff had no legal title to the land in dispute, not being included in the levy and sheriff’s deed, and after Buchanan’s offer there was no equity in the plaintiff’s claim.
    
      Ramsey and Metzger, contra.
    This question is predicated on the- fact of the plaintiff’s being in a mistake as to the land levied on. But we say the plaintiff was not mistaken, and the jury have said so. The defendant’s question was not warranted by the evidence, and, if it had been, the answer ought to have been in the plaintiff’s favour. The defendant’s offer was not sufficient. He offered to pay the plaintiff his whole money and costs, if he would relinquish the whole purchase, whereas there was one tract to which the plaintiff had title beyond dispute. The offer ought to have been, that if the plaintiff would relinquish that part not included in the levy, he would repay him pro tanto. It was too late,for the defendant to take advantage of a mistake after encouraging the plaintiff to buy at sheriff’s sale. He made no objection to the acknowledgment of the deed, or to the plaintiff’s taking possession of a part.
   The opinion of the court was delivered by

Gibson, J.

The points made by the plaintiff in error, are founded on an assumption of the fact, that the tract for which he took defence in the court below, was actually excluded by tbe levy, in consequence of which it was sold. If, by reason of the defendant’s declarations at the sale, the plaintiff was induced to purchase, under a belief that it was included, although the sheriff’s deed would not convey the legal title, yet his purchase would give him an equity which chancery would render effectual, by decreeing a conveyance; and this, whether such declarations proceeded from design, or a misapprehension of the fact. If both were equally innocent, a loss, in consequence of the acts or declarations of the one, ought not to be borne by the other. Then it remains to be considered, how far this result may be varied by the defendant’s offer, to take the whole purchase off the plaintiff’s hands, and compensate the trouble and expense which he had incurred. This offer was made after the sheriff’s deed had been acknowledged. The consequences of the common mistake of all parties may be obviated, by setting aside the sale, and again putting the property up, on fair terms; but to this, which I take to be the only remedy of which the case is susceptible, recourse cannot be had, after the sale has been carried into effect by a conveyance. But an offer to take the property off the purchaser’s hands, is quite a different thing. If the debtor can put him exactly in the situation he would have held, if he had purchased with full knowledge of the facts, it is all very well; but, if he cannot repair the consequences of his own mistake, but by depriving the purchaser of his bargain, how can he eomplain ? The property may, from accidental circumstances, be worth much more to the purchaser than its intrinsic value; and his object in making the purchase ought not to be frustrated, by correcting, at his expense, an error of which he was not the author. And beside, if all parties acted under the same misapprehension, and both tracts were, bona fide, bid for, as if both had actually been included in the levy, what harm has been done ? The presumption is, that the whole was sold for a fair price; and there has been no sacrifice of an unnecessary quantity, for the proceeds of the sale were insufficient to satisfy the debt. Nothing could defeat the plaintiff’s equity, but proof of his having been informed of the true state of the fact, and having permitted the defendant to labour under the consequences of his mistake.lt is, therefore, clear, that the court was right in directing the jury, that these points, as proposed by the plaintiff’s counsel, were not sustainable.

Judgment affirmed.  