
    
      Samuel Lewis v. J. G. Brown.
    
    
      Where one bids off property at a sheriff’s sale and does not pay the money, there is no sale, and the resale, if made consistently with the rules of law, should be regarded as a sale at his risk, and because he had not paid.
    If a sheriff, at his own sale, purchase indirectly through another, as his agent, such purchase is void, under the Act of 1839, and no title will vest in the sheriff upon which the lien of an execution against him can attach.
    Many of the prerequisites of a sheriff’s sale, such as advertising a certain time, and selling at a particular place and time, are merely directory, and may be dispensed with if all in interest assent.
    If one be in possession of property, that is pima fade evidence of title, and no one has a right to dispossess him but the rightful owner, or one having a better title.
    
      Before Evans, J., at Gillisonville, Spring Term, 1849.
    TROVER FOR A NEGRO MAN NAMED PROPHET.
    The grounds of appeal render only a concise history of the case necessary.
    One Mulligan, the sheriff of Beaufort District, under ajñ. fa. sold, as the property of one Ferguson, the negro Prophet, with others. He was bid off, and set down in the sheriff’s book to one Langford, whose name was used by Mulligan, to elude the law which prohibited him from buying at his own sale. Langford said he paid no money. At a subsequent time the negro was sold again at public sale before the Court House door, and purchased -by the plaintiff, Lewis, who paid the amount of his bid ; but there was some doubt whether this second sale was' on a regular sale day. Buckner, the auctioneer, said it was, but others said it was during the sitting of the Court, which was on the second Monday in April. The plaintiff took possession and kept the negro two or three years, when he was levied on, as Mulligan’s property, under Brown’s execution, which had been lodged anterior to the time when the plaintiff purchased. The whole case depended on .whether Mulligan ever had any title to the negro. If he had none, then there was no lien under Brown’s execution, and the seizure was tortious. The Circuit Judge charged the jury as follows:
    
      1st. That as Langford had never paid the money, nor had ,the terms of the sale been complied with, the re-sale, if made on a regular sale day, must be, referred to the execution under which he had been' first sold ; and, if so, the plaintiff’s title was good. This was in conformity with the opinion of •the Appeal Court.
    2d. If the second sale was not on a regular sale day, then it could not be referred to the sheriff’s authority under the •execution: but as the plaintiff had possession, the defendant had no legal right to dispossess him, unless his execution had a lien on the negro, and this depended on whether Mulligan, through the agency of Langford, could buy at his own ■sale.
    His Honor charged the jury expressly that any purchase made by a sheriff at his own sale, was absolutely void by law, and consequently no title had ever vested in Mulligan, on which the lien of Brown’s execution could attach. They ■found .for the plaintiff the value of the negro.
    The defendant appealed, and moved for a new trial, on the grounds:
    1st. Because his Honor erred in charging the jury, that, 'considering Mulligan the purchaser at the sale in March, 1844, he could acquire no title — that the lien of Brown’s execution could not attach, and the law forbidding him to buy, the result was that the plaintiff could not be deprived of the property, but was entitled to the verdict.
    2d. Because his Honor erred in charging the jury that the entry in the sales book was the only evidence that ought to be received; that by it, Langford was the purchaser, and the re-sale must be referred to Mulligan’s official authority.
    3d. Because his Honor erred in charging the jury, that, even if the re-sale was not made on the regular sale day, the plaintiff was still entitled to the property, because he had the possession.
    4th. Because the verdict is contrary to Jaw and evidence.
    
      jDavant, for the motion.
    
      Singleton, contra.
   Curia, per Evans, J.

By the 7th sec. of the Act of 1839, the Sheriff is required to keep and turn over to his successor, a sale book, in which, among things, he is required to enter, in a column to be provided for that purpose, the names of the purchasers of any property sold by him ; and by the 49th sec. of the same Act, it is enacted that no sheriff or deputy sheriff shall be concerned or interested, directly or indirectly, in the purchase of any property sold by either of them officially, and if any such sheriff or sheriff’s deputy shall be concerned or interested in any such purchase, at any such sale made by either of them, he shall, on conviction thereof, by indictment, be deprived of bis office, and shall be liable to be fined and imprisoned, at the discretion of the Court, and such shall be null and void.

If Langford had been the purchaser in fact, then no title ever vested in him, because, according to his own account,. he never paid the money, and of course there was no sale,, and the resale^ if made consistent with the rules of law, should be regarded as a sale at his risk, and because he had not paid. But if, as I presume was the fact, Mulligan was the purchaser indirectly through Langford as his agent, then such purchase was void by the clause of the Act above recited, and if void, no title ever vested in Mulligan upon which Brown’s execution could attach. It may well be that in a controversy between Mulligan and his creditors, a case might arise in which he might be estopped from saying the title was not in him. But in a case involving the rights of third persons, I do not see how any title can be supported which is traced through a purchase made by a sheriff in violation of law, and which is declared expressly to be null and void. That is Brown’s condition. If Mulligan’s purchase be null and void, no title vested in him, and unless a legal title vested in him, then there was no lien of Brown’s execution.— Lewis was in possession ; that was prima facie evidence of title, and no one had a right to dispossess him but the rightful owner, or one having a better title. It may be, if Lewis had not had possession and could make out in himself no other title than what he could trace through Mulligan as a vender, and not as sheriff, he could not recover, because he would have to trace his title, as Brown has, through the same void sale ; but that is not his condition, he stands on other ground. It is clear Langford did not buy the negro. He did not pay the money ; it is equally clear that Mulligan did not buy, because the law prohibited him. The negro remained, therefore, in Mulligan’s hands, unsold, as the property of Ferguson; under these circumstances Mulligan did sell.— His deputy, Buckner, said he sold as sheriff, and at a regular sale day, and if this was clearly proved, I think there could be no doubt about Lewis’ title. But it is likely, from the evidence, that Buckner was mistaken as to the day, and that the sale, in fact, was on the 2d Monday, and not on the first, ■ as required by law; and hence it is objected, that the sale cannot be referred to Mulligan’s character as sheriff. But this is a mistake ; there are many of the prerequisites of a sheriff’s sale, that are merely directory, and will not vitiate the sale, as omission to advertise in a gazette. All these prerequisites of the sale, such as advertising a certain time, and selling at particular places and times, are required for the benefit of those interested, to prevent frauds and ensure a fair sale. But has it ever been doubted that these may be dispensed with, if all in interest assent 1 Do we not know that by arrangement between the parties, the sheriff sells property on a credit, and without complying with all the requirements of the statutes regulating sheriff’s sales ? The reason is as above stated, that these are required for the benefit of those interested in the sale, and to prevent frauds by secret and irregular sales. It follows that no one but Ferguson and his creditors have a right to object. In every view in which this case has-been presented to my mind, Lewis’ title to the negro is good, as against Brown’s execution, which had no lien, unless,a legal title vested in Mulligan by a purchase which the law declares absolutely void.

The motion for a new trial is therefore dismissed.

Richardson, O’Neall, Wardlaw and Frost, JJ. concurred.

Motion refused.  