
    James Etters vs. Hamilton Wilson.
    
      Estoppel — Evidence—Constable.
    
      W., a constable, having an execution of B. against E., and being indemnified by B., levied on and sold as the property of E, a mule, which J. claimed under a bill of sale from E. J. brought trespass against W., B. and S., for taking and carrying away the mule, and recovered its value. Before J.’s recovery, E. disclaimed title to the mule, but afterwards he brought an action against W. for the surplus' arising from the sale of the mule which remained in W.’s hands after satisfying B.’s execution ; — Held, that E. was not entitled to recover ; that W/s act, in levying on and selling the mule, did not amount to an estoppel, but only to an admission of title in E., and of his right to the proceeds of the sale; and that that admission had been conclusively rebutted.
    The bill of sale by E. to J., and the record in the action of trespass for taking and carrying away the mule, were held, to be competent evidence for the defendant.
    BEEOEE MUNEO, J., AT YOEK, SPEING TEEM, 1859.
    The report of his Honor, the presiding Judge, is as follows.
    “In the year 1857, the defendant being a constable, and having in his hands two magistrate’s executions in which Wm. 0. Black was the plaintiff, and the present plaintiff the defendant, amounting in the whole to $26 92, levied upon and sold a mule as the plaintiff’s property.
    “The mule having been claimed by the plaintiff’s sister, Sarah Jane Etters, under a bill of sale from her brother, the sale was forbidden — upon which Black, the plaintiff in the executions, indemnified the defendant, who thereupon, on the 22d of 'January, 1857, sold the mule at public outcry for $93. After satisfying the above executions, there remained in the hands of the defendant, a balance of $66 70 — which sum the plaintiff now seeks to recover.
    
      “ It was clearly established by the testimony of the witnesses. Eulton, Eoark, Wilson and Clark, all of whom were present at the sale, that the plaintiff disclaimed having any interest in the mule, and that upon the defendant’s tendering to him the balance, .after satisfying the two executions — which he now seeks to recover — he expressly refused to receive it, alleging as a reason for his refusal, that the mule belonged to his sister, and that he had no interest in it whatever.
    “ All the foregoing testimony was objected to by the plaintiff’s counsel, upon the ground that defendant was estopped from denying title in the plaintiff.
    “It further appeared, that under the above mentioned bill of sale, the plaintiff’s sister brought an action of trespass against the present defendant, and Black and Etters, for the levy and sale of the mule, and recovered $93 damages.
    “ Both the bill of sale and record of recovery by the defendant were offered in evidence. They were objected to by the plaintiff’s counsel, but the objections were overruled. The case was submitted to the jury, with the expression of views decidedly unfavorable to the plaintiff’s right to recover. The jury found for the defendant.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds:
    1. Because his Honor, the Presiding Judge, erred, it is respectfully submitted, in instructing the jury that as the plaintiff had sold the mule to Sarah Jane Etters before the sale by the defendant, said plaintiff was not entitled to the balance of the sale of the mule after satisfaction of the said executions in defendant’s hands.
    2. Because his Honor held that Sarah Jane Etters, having recovered the price of the said mule against Hamilton Wilson, William C. Black and Samuel Etters, by virtue of a bill of sale executed to her by James Etters before the sale, the defendant had the right to apply the balance of sales in his hands to the execution.
    3. Because W. C. Black, having indemnified the defendant in selling the mule, the defendant must look to that indemnity, and has no right to apply the money in his hands to relieve said W. C. Black.
    . 4. Because the rule of caveat empior applies to constable’s sales, and a purchaser only buys whatever interest the de; fendant in the execution has in the property sold, and no more. '
    5. Because the defendant never paid over the amount claimed, to Sarah Jane Etters or any one else, and the plaintiff is entitled to recover the same.
    6. Because his Honor permitted the defendant to offer in evidence the bill of sale executed by plaintiff to Sarah Jane Etters, and the record in the case of Sarah Jane Etters vs. H. Wilson and others, to prove the plaintiff had no title to the mule sold by defendant, when it is submitted that such paper and record were inadmissible in evidence, and’ the fact, if established, was wholly immaterial.
    
      Williams, Beatty, for appellant.
    The first four grounds may be considered together. There is no implied warranty at constable’s sales. The rule of caveat emptor applies. Roark bought the mule as the property of the plaintiff, and was bound to pay his bid. He did pay. The constable received it, and, after satisfying the executions he held against plaintiff, a surplus remained in his hands. Who was entitled to it? Neither Roark nor Sarah Jane Etters claimed it, and neither were entitled. Plaintiff did not warrant the title Roark ■ bought; and Sarah Jane Etters was not a party to the constable’s sale, nor affected by it. W. C. Black indemnified the constable against her claim, but the fact of'such indemnity did not entitle him or the defendant to the money, nor to hold it to protect them from the consequences of their trespass in selling her property. They cannot stand in her shoes and claim the benefit of the warranty of title to her by plaintiff. Defendant has received ninety-three dollars of plaintiff’s money, and must show what he has done with it. Yates vs-Bond, 2 McC., 382 ; Davis vs. Hunt, 2 Bail., 413 ; Moore vs* Aiken, 2 Hill, 403 ; Adai%• vs. McDaniel and Cornwell, 1 Bail., 158 ; Perry vs. Williams, Dud. 45.
    5th Ground. Defendant still has the money in his hands. Plaintiff may have once declined to receive it, but this does not entitle defendant to keep it al ways or to pay it to one not entitled to it. Before this suit was brought, plaintiff demanded the money of defendant, who refused to pay it.
    6th Ground. The bill of sale made by plaintiff to Sarah Jane Etters, was offered to show plaintiff had no title to the mule when sold by thé constable, and the Presiding Judge held it an estoppel of plaintiff’s right to recover. In this was error. In effect i.t went to hold the plaintiff a warrantor at the constable’s sale. The record was res inter alios acta, and .proved matters foreign to the proper issues in this case.
    
      Wilson, contra,
    citd 2 Amer. L. Cas. 524; 1 Phil. Ev. 324; 3 Phil. Ev. by C. & H., 813, note 567; 9 Rich., 443; 5 Strob., 147 ; 1 Bail. Eq., 137; 2 Green. 588; 24 Pick., 89; 2 Bay, 47.
   The opinion of the Court was delivered' by

Wardlaw, J.

It is too clear for denial that here the plaintiff was, by his acts, precluded from saying that he had any right of property in fhe mule when it was sold. He rests his case upon an ingenious argument. It is this, ,“I did not think that I had any interest in' the mule — b.ut you thought that I had, you sold my interest, the purchaser, buying under the rule caveat emptor, has paid ninety-three dollars for my interest; after satisfaction of the execution against me, a surplus remains in your hands, and I am entitled to that, because nobody else has a right to it, and it has come from the sale of my interest.”

The answer has been of this sort. “ It was not the interest of the defendant in execution, which was sold by the constable, but the mule for satisfaction of that defendant’s debt: the whole mule was sold, because the part sufficient for the satisfaction could not be severed. The purchaser acquired at first only such right as that defendant had in the mule, which has since been enlarged and confirmed by the transfer to his vendor of all' the rights of Sarah Jane Etters — a transfer resulting by law from her recovery in an action of trespass de bonis asportatis of the value of the mule and satisfaction of that recovery. Parker vs. Johnson, 1 N. & McC. 1; Jones vs. McNiel, 2 Bail. 474. A right to the surplus has been shown to be in some third person when it has been made clear that the defendant in execution had no property in the chattel sold: the admission of that defendant’s right implied from the sale is not irrebuttable; and ex segno et bono there is no pretence of justice in his claim to have what has arisen from property not his, for which others have made satisfaction to the person he has acknowledged to have been the true owner.”

The answer is satisfactory. Policy applies the rule caveat emptor to constable’s sales under execution, as well as to sheriff’s; and therefore a purchaser at such a sale cannot resist the right of the creditor in execution to demand payment of his bid. But when the same person is purchaser and sole creditor, and has not yet completed the transaction by payment, he may, in a contest between himself and the debtor, resist the latter’s demand of payment, by showing his fraud in the sale. Herbemont vs. Sharp, 2 McC. 264. If no right of a creditor opposes, any purchaser may do the same, as to the whole bid, Minter vs. Dent, 3 Rich. 205, and after satisfaction of all creditors, a surplus falls -under the same principles. Towles vs. Turner, 3 Hill, 180.

Here no fraudulent procurement of the sale, or interference with it, by the debtor appears ; for it was made against his remonstrance. But his success in this action would be a fraud, because he has received payment for the mule from his sister, Sarah Jane ; she has received payment from this defendant and others; he has obtained from the constable’s sale satisfaction of the execution against himself, and now demands money had and received for his interest in a chattel wherein he had no interest, upon the ground that the sale was made without warranty. As there was no warranty there can be no recourse by the purchaser to him or his agent. But the want of warranty has not protected the agent from the suit of the true owner. The agent’s transactions imply an admission of this plaintiff’s property in the chattel, but not an admission so conclusive as to be an estoppel. When taking on himself the burden the agent has shown that his principal had no property in the chattel, how can an exclusion of warranty make it proper that the agent should pay to the principal who had no property in the chattel, what remains in his hands of the proceeds of a chattel, for which he has been made answerable to the true owner ?

Shall the constable, the agent, then keep the surplus, upon the allegation that the debtor in execution had not title ? No. If he cannot clearly explain and overcome the admission contained in his sale of the chattel as the property of the debtor, he shall pay to the debtor. If, as here, he shows clearly that the debtor had no interest whatever in the chattel, the third person, who is shown to have been the true owner at the time of the sale, shall have the money, if that person chooses to waive the tort, confirm the sale, and accept the surplus in satisfaction of his entire claim. If the true owner, insisting on his superior rights, has sued the purchaser and received from him the value of the chattel, fhen the purchaser shall have the surplus, and be put in the same condition, as if he had never paid it. If leaving the pur- . chaser unmolested, the owner has sued the officer and obtained satisfaction from him, then the officer having acquired by satisfaction the rights of the owner, shall retain the surplus. If satisfaction to the owner has come from an indemnifier or other person, then such person, by acquisition of the rights of the owner, has become entitled to the surplus. In this case, there was recovery by the owner against the constable and an indemnifier jointly, they have made satisfaction, and according to their payments and the contract between them, their rights to the surplus will be adjusted.

It has been urged by the plaintiff, that the bill of sale made by the debtor (the plaintiff) to the true owner, (Sarah Jane Etters,) and the record of the recovery by Sarah Jane Etters against this defendant and others, were improperly admitted in evidence: It has not been imagined that the

admissions of the plaintiff, such as those he verbally made at the constable’s sale, were improperly admitted, if the defendant was not wholly estopped from denial of title in the plaintiff, and the bill of sale is only a more formal admission. That it was made to a third person is no more important, than would be the circumstance that a verbal admission was made to a third person.

The record is admissible as a link in a chain of title. It is, when connected with satisfaction, equivalent to a bill of sale from Sarah Jane Etters, and is no more objectionable than a judgment between third persons adduced to show a sheriff’s authority to sell and convey land. The mistake that has given rise to this objection, has proceeded from confounding two purposes for which a judgment maybe offered, first to show the truth of what has been adjudged, and second to show the fact that the judgment was rendered and the legal .consequences thence deducible. For the latter purpose a judgment inter alios is always admissible, and often is not only conclusive but the only proper evidence. The cases on this subject have been well arranged by Co wen and Hill in their notes to Phillips Ev., 3 vol. 820-4, notes, 582-45.

The motion is dismissed. .

O’Neall, Glover, and Munro, JJ., concurred.

Motion dismissed.  