
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    N. and S. Gardner v. John Sanders.
    In an action to recover the difference of price between a first and second sale at auction of land, where the vendee at the first sale had failed to comply with the terms and conditions thereof, the declaration set forth, among other things, that the plaintiff was “ seized in fee?’ of the land in question: It was held that this averment, or allegation, need not be proved.
    In trespass on the case, it is not necessary to prove immaterial averments.
    Special action on the case, tried in Darlington district before Bre-vard, J. The sheriff of said district having an execution of fi. fa. against the plaintiffs, levied on a tract of land, their property, and sold the same at auction to the defendant, for three hundred and fifty dollars. But the defendant not complying with the terms of the sale, the sheriff was obliged to resell the same land, which he ■fairly did at public auction, to another purchaser, for two hundred and seventy-one dollars and fifty cents. For the difference between the prices-for which the land sold at the first and second sale, this action was brought: viz. seventy-eight dollars and fifty cents.
    At the trial, Branding, for the defendant, moved for a non. suit; and contended, 1. That the action could not be maintained upon the authority of the vendue act of 1785, P. L. 365; because the sheriff, who sells by virtue of his office, cannot be considered as a vendue master within the meaning of the act; nor can the sale so made be considered as a public sale. 2. That if any action lies for- a difference upon a resale by the sheriff, it must be by the sheriff, and not by the proprietor of the.property. 3. That if the action can be maintained by the proprietor, he must shew that he was the rightful proprietor of the property, arid shew that he had a good title to the same at the time of the sale; which was not done in this case.
    The counsel for the plaintiffs relied oil the determination in the case of Líale v. O’Hanlan in this court in April, 180ti. And the court overruled the motion for a fionsuit-
    The jury found for the plaintiffs.
    The motion in this court was to set aside the verdict, and for leave to enter a nonsuit.
    Branding, in support of the motion,
    contended, 1st. That the sheriff who takes property in execution gains thereby a qualified property ; and that by such taking the execution is satisfied to the ^extent of the value of the property séized ; and that the sheriff is liable to that amount. Bac. Abr. And whether he sells or not.; for if the goods are rescued, the sheriff shall answer for their value. The sheriff was answerable in this cáse for the money for which the land sold at first, to the proprietors ; and to him they ought to have resorted. The execution was satisfied by the first sale; and the sheriff could not resell. But if he could resell, it was at his own risk, and the vendee is not liable for any difference between the' first and second sale; for the sheriff is not a vendue master within the intent of the vendue act, nor can his sales be considered in the light of public sales at auction. If so, the case is within the statute of frauds, and the defendant cannot be answerable without a memorandum in writing. 2d. But if the sales of sheriffs under execu. tlon, are to be regarded as public sales, and they are to be regarded as vendue masters, within the intent of the ordinance for regulating public vendues, commonly called the vendue act, yet this action is not maintainable ; because that ordinance declares, that upon a resale, the deficiency the vendue master shall recover, and not the proprietor. But 3d. If the owner can maintain the action, it must be on condition that he makes it .appear satisfactorily that he was the true owner. In the declaration in this case, the plaintiffs have alleged that they were seized in fee of the land, which they did not prove at the trial. This is a material allegation, and ought to have been proved.
    Lesley, for the plaintiff.
    The case of Hale v. O’Hanlan, has settled the law on this question. That was a case precisely like the present; and although all the objections taken in this case were not urged in that, yet they must have been considered by the court. In this case, it is true, the declaration does alledge that the plaintiffs were seized of the land in fee; but this allegation is not mate» rial to the support of the action. It was not necessary that it should have been averred, or alleged in the declaration, and therefore, it was not neoessary t0 prove it. In trespass on the case, all material averments only are put in issue. 2 Bl. Rep. 640. If the substance 0p t|ie jssue ¿s prove(j it is sufficient. The plaintiffs were in possession of the land when it was seized, or levied on, in execution. It was advertised, and set up at auction as their property, and the defendant bid for it as their property. He is therefore estopped to deny that it was their property. Where one in possession brings an action against a wrong doer, it is sufficient to declare generally, without disclosing any title; otherwise, he must allege a seizin in fee. Co. Litt. 17. 2 Show. 81, 195. 57 Rep. 4 T. R. 712. 3 do. 147. 4 Bac. 14. Besides, the vendee at a sheriff’s sale, is always supposed to buy the interest of the party against whom the execution is, whatever it may be, more or less ; and neither the sheriff who sells, nor either of the parties, plaintiff or defendant, in the action upon which the execution has issued, are bound to warrant the title, or quantity of interest sold.
   Tkbzevakt, J.,

delivered the resolution of the court. All the judges present except Wilds, J. 1. The ordinance of 1785, for regulating public vendues, seems to have had in view only licensed vendue masters and auctioneers; yet sheriffs being within the design and reason of it, ought to be considered as comprehended in the scope and spirit of it. The ordinance declares, that every person who shall purchase any lands, &c. at any public sale, which shall be entered in the books of the vendue master so selling, shall be liable to all losses on a resale, if he shall not comply with the conditions of the sale. Sheriffs’ sales are public sales within the policy of the ordinance, and within the mischief intended to be remedied by it; and sheriffs, who keep regular books, and accounts of sales, and are public officers acting under the sanction of an oath, and the confidential servants of the community, may be fairly considered as quasi vendue masters in relation to their sales under execution. 2. Upon failure to comply with the conditions of a public sale by the vendee, the vendue master is authorized by the act to resell the lands, &c. on the original conditions; and whatever défi-ciency shall arise on such purchasers’ non-compliance, the vendue master shall recover from such purchaser. But in the foregoing part of the same section of the act it is declared, that the purcha-sher rofusiog to comply with the conditions of the sale, within seven days thereafter, shall be liable to all losses arising thereon, to the original owner. Now, although it appears the vendue master, or sheriff, is intitled in such cases to sue for and recover such deficiency, or losses arising, for the benefit of the original owner; yet, as the vendue master, or sheriff, may omit, or refuse to bring, or prosecute such action, and as the act expressly declares that the purchaser so non-complying, shall be liable to the original owner, the act, must be construed to intend the giving a right of action to the owner. And the purchaser is liable immediately to the owner, in case the vendue master, or sheriff, declines to sue. In the case of a sheriff, it may be necessary sometimes, to give him a prior right of action, for the benefit of creditors. In general, no evil can result from laying it down as a rule, that either may maintain this action, the vendue master, or the owner of the property sold: but both cannot recover, for there shall be but one remedy. 3. The aver, ment in the declaration that the plaintiffs were seized in fee, is an immaterial averment in this action, and it was not necessary to prove it.

Note. Sheriffs’ sales are within the statute of frauds. 2 Caines, 61. And requires a deed, or note in writing, to pass the estate. See 2 Johns. 250.

The determination of the District Court was correct; therefore, the motion is discharged.  