
    [Lancaster,
    May 29, 1823.]
    WEIDLER against The Farmers Bank of Lancaster.
    IN ERROR.
    A purchaser of land at sheriff’s sale buys at his own risk, and acquires the interest which the defendant in the execution had, and no more. Where, therefore, he has paid the purchase money, he cannot remove it back, in consequence of a defect of title, in an action for money had and received, against the plaintiff in the execution, without proving express fraud in the plaintiff.
    A deed duly recorded, by which the defendant in the execution had conveyed the premises to a third person, before the judgment was obtained, tinder which the sale took place, affords, when standing alone, no presumption of fraud, and is, therefore, inadmissible in evidence
    Nor can a mortgage, executed by the person from whom the defendant in the execution purchased, and under which the property was afterwards spld, be received as evidence of fraud. ¡
    The sheriff is not the agent of the plaintiff in the execution, who is not responsible for misrepresentations made by the sheriff at the time of sale, respecting the title, unless it be shown, that he acted under the instructions of the plifintitt'.
    A petition presented by the purchaser to the plaintiffin the execution, setting forth the mistake under which he bought, and the misrepresentations of the sheriff; and requesting that the money which he has paid may be refunded, which was refused by the plaintiff, is not evidence of fraud in the plamtjff, in an action brought against him to recover back the purchase money.
    Notwithstanding the rejection of the testimony, offered by the plaintiff'to prove fraud, it is competent to the defendant to give in evidence the condemnation of the property under his execution, the printed or written conditions of sale, the sheriff’s deed to the purchaser, and the payment by the latter, of the purchase money, in order to show the fairness and regularity of the proceedings.
    If evidence be irrelevant at the time it is offered, it is not error to reject it, because other evidence might afterwards be given, in connection with which, it would become relevant. If it would be relevant in conjunction with other facts, it ought to be proposed in connection with those facts, and an offer to follow the evidence proposed, with proof of those facts, at a proper time.
    Facts, which of themselves, can have no legitimate operation upon the issue, cannot be received in evidence, because the jury might possiby infer other facts, which in connection with them, would support the issue.
    "Where facts have been given in evidence, according to the finding of which, the verdict will be decided, it is error in the court to instruct the jury, positively, to find for either party; but where, admitting every fact and circumstance to be true, the plaintiff has entirely failed to make out his case, such instruction is not erroneous.
    Samuel Weidler, the plaintiff in error, brought a suit in the Court of Common Pleas of Lancaster count]', against the defendants in error, in which he declared for money had and received by them to his use. It appeared from the record, and the several bills of exceptions accompanying it, that the Farmers Bank of Lancaster had, on the 10th of August, 1815, obtained a judgment on an award of arbitrators, against one John Fulweiler, for 361 dollars 43 cents. A fieri facias issued to November term, 1815, which was levied upon a house and lot of ground in Marietta,which were subsequently sold under a venditioni exponas, and purchased by Weidler, the plaintiff, who paid the purchase money to the sheriff, by whom it was paid over to the bank._ This action was brought to recover back the money thus paid. For the purpose, as was alleged, of showing, that the bank had received and retained the money by fraud, imposition, and mistake, the plaintiff offered to prove, that on the 31st of May, 1815, John Fulweiier had conveyed the property in question to One David Bauman, the deed for which was recorded in Lancaster county; and that on the day of sale, the deputy sheriff, who conducted it, encouraged the plaintiff to bid, by telling him, that he would buy a good title, clear of incumbrances. He further proposed to show, that prior to the institution of the present suit, he presented a petition to the Farmers Bank, setting forth these facts, and requesting that institution to refund the money they had received, which they refused to do. An objection was made to the admission of this testimony, which was sustained by the court, who sealed a bill of exceptions.
    
      The plaintiff, then, in the pursuance of the same object, offered to prove, that on the 4th of May, 1811, Charles Nagle, under whom Fulweiier derived title to the property, had mortgaged it for 600 dollars, to John Flarnly and Christian Hersh, and that the mortgage was duly recorded in Lancaster county; that a scire facias issued ujaon it, on which judgment was obtained, and that on a levari facias, returnable to August term, 1817, the premises were sold by the sheriff. The court, on an objection being taken, rejected this testimony, and sealed ayecond bill of exceptions.
    The defendants then offered in evidence the conditions, under which the sale to the plaintiff took place, dated July 25th, 1816, and also, the deed from the sheriff to the plaintiff, executed on the 15th August, 1816, and duly acknowledged. To the admission of this evidence, the plaintiff’s counsel objected, but the court admitted it, and sealed a third bill of exceptions.
    When the evidence was closed, the counsel for the plaintiff, requested the court to charge,
    1. That if the defendants, knowing that the property sold to the plaintiff,-did not belong to John Fulweiier, had it fraudulently levied upon, condemned and sold, and received the purchase money from the sherifij the plaintiff was entitled to recover, because it was against equity, that the defendants should retain the money.
    The court answered, that if the fraud was proved, the defendants would be liable to refund.
    2. That if the defendants acted' under a mistake, and did not knowv-that'.the property had been conveyed by Fulweiier before the institution of their suit, and in consequence of that mistake, they had-it levied on, condemned and sold as his, and received the purchase money; then the plaintiff is entitled to recover, because, having discovered the mistake, and given notice of it to the defendants, after he had paid the purchase money, and before the institulion of this suit, it is against equity for the defendants to retain it, and a fraud in them to do so.
    To this proposition, the answer of the court was, that the mistake suggested, would not render the defendants liable in this suit.
    3. That the deputy sheriff, having acted as the agent of the defendants, in making the sale, they are liable for his misrepresentations.
    The court were of opinion, that the deputy sheriff was not the agent of the defendants, nor were they liable for his misrepresentations, unless it were shown, that they had authorised them.
    The court, in conclusion, instructed the jury, that there was no legal evidence, to entitle the plaintiff to recover, and that their verdict ought to be in favour of the defendants. The counsel for the plaintiff excepted to the whole of the court’s charge.
    
      Porter and Buchanan, for the plaintiff in ei’ror,
    in arguing the errors assigned in the first and second bills of exceptions, admitted that the rule of caveat emptor applied to purchasers at sheriff’s sales, but insisted, that where the plaintiff in the execution, levies on property, which he knows not to belong to the defendant, with intent to raise money by the sale, it formed an exception to the rule, because such conduct was fraudulent. The only question, therefore, v/as, whether the evidence rejected by the court below, did not in some degree at least tend to prove fraud. The first step toward establishing fraud was, to show that the defendants knew that Fulweiler had no title, and it was surely some evidence of that fact, that there was a deed upon record, by which he had conveyed it to a third person. Another evidence of fraud was, that the plaintiff requested the defendants to refund the money, which as honest men they could not retain, for there was no pretence, that Fuhveiler had a shadow of title at the time the sale took place. This, however, was refused, and the refusal tends to show the character of the whole transaction. These circumstances might have afforded an inference to the jury, of the existence of fraud, and if so, however slight that'inference might have been, the court were wrong in rejecting the evidence. The existence of a mortgage, too, which rendered the title purchased by the plaintiff, worthless, ought to have been permitted to be shown to the jury, because it was the intention of the plaintiff to follow it up with proof, that he had been imposed upon by means of the defendants. Although the deputy sheriff might not, in strictness, have been considered as the agent of the defendants, yet there was some presumption, that he was acting under the directions of the bank, and in that point of view, his declarations were evidence.
    
      Third. The court, having rejected the evidence offered by the plaintiff, ought not to have permitted the defendants to strengthen their case, by proving the conditions under which the sheriff sold the property. The execution of his deed to the plaintiff, would not have been liable to objection', if the plaintiff’s evidence had been received; but when that evidence, which went to show want of title was rejected, evidence which went to prove title, was irrelevant.
    
      Fourth. It is conceded, that the deputy sheriff was not the agent of the defendants; but the court were clearly wrong in taking the ease from the jury, by declaring in sweeping terms, that there was no evidence to entitle the plaintiff to recover. In Jones v. Wildes, 8 Serg. fy Rawle, 150, it was expressly decided, that a positive charge to find for either party was error.
    
      Hopkins, for the defendants in error,
    after noticing the distinction between the right to recover back money voluntarily paid, and the right to resist payment when it is sought to be recovered by action, to which he cited, 1 Dali. 148. 2 Bl. Rep. 825. 2 Dali. 231,'argued, that the evidence offered by the plaintiff below, as stated in the first bill of exceptions, did not in the slightest degree, directly or indirectly,, tend to fix fraud upon the defendants, or to show that they had any knowledge that Fulweiler had conveyed the property to a third person prior to their judgment. The sheriff was commissioned to sell the right and title of the defendant in the execution, and it is now well settled, that neither the plaintiff nor the sheriff, is responsible for the soundness of the title. The purchaser buys at his own risk. Smith v. Painter, 5 Serg. fy Rawle, 223. With the representations about the title, made by the deputy sheriff, they had no concern. He was not the agent of either party, but of the law, and acted in obedience to the command of the writ. There was no offer to prove that the defendants had given him any instructions, and unless that fact be shown, they are not answerable for any thing which he may think proper to say. Besides, the conditions of sale were in Writing, and to them alone the plaintiff ought to have looked. As to the petition drawn up and presented to the bank by the plaintiff, as it was evidence of the plaintiff’s own making, it was clearly right to reject it.
    2. The defendants could not be in any manner affected by the mortgage offered in evidence. It had nothing to do with the title. It was upon record, open to the inspection of the plaintiff, and the sheriff sold the property subject to it.
    3. The evidence offered by the defendants, to the admission of which the plaintiff excepted, viz. the condemnation, the conditions of sale, the sheriff’s deed, and the payment of the purchase money by the plaintiff, was rendered necessary by the testimony previously given by the plaintiff, and was therefore properly admitted.
    4. That the court were right in their answers to the propositions submitted by the plaintiff, it is scarcely worth while to argue, and indeed this seems to be conceded by the opposite counsel. With respect to their declaration, that there was no evidence to entitle the plaintiff to recover, and therefore the verdict should be for the defendants, it is an answer to say, that there was not a single fact in dispute, OEone which afforded a legal inference of fraud. There was moreover aflat bar to the plaintiff’s recovering back the money he had paid, because he retained the title which the sheriff had conveyed to him. Even therefore if there had been fraud, a tender of a reconveyance should have preceded the institution of this suit.
    
      Reply.
    
    An action for money had and received, was the proper form in a case like this. Where money has been obtained by fraud, or paid by mistake, it may be recovered back in an action for money had and received. Com.. on Coni. 35. Eastwick v. Hugg, 1 Dali. 222. It has been said a reconveyance should have been tendered before the commencement of this action. But what was there to reconvey ? The deed from the sheriff to the plaintiff passed nothing. Fulweiler had no title. And to whom was the reconveyance to be made? If to Fulweiler, it would have worked an injury to the defendants. Moreover it appears from the record that the plaintiff never accepted the sheriff’s deed.
   The opinion of the court was delivered by

Gibson, J.

This action could be sustained only on proof of actual fraud in the defendants. . The contract between the judgment creditor and a purchaser at sheriff’s sale, is not like that .which arises, where, from the subject matter and nature of the agreement, it must be conceded that the parties proceed on a supposition that the facts are in a particular way, and in which the common mistake of both, is good ground to rescind the bargain ; but the purcháse is essentially based on a state of things resting in contingency. The par.ties do not treat for a title, but the creditor proposes to sell and the purchaser to buy, just whatever interest the debtor may have in the land, for nothing more is affected by the judgment; and therefore mere mistake, without misrepresentation of circumstances or any other species of express fraud by the creditor, will be insufficient to enable the purchaser to recover back the price he has paid ; he purchases the debtor’s title such as it is, and must stand to the risque. But for actual fraud the judgment creditor would be liable ; and an innocent man who had been inveigled by him into a purchase, might rescind the contract and compel him to refund. With respect to the first bill of exceptions, then, the question is whether the facts nakedly as they were presented to the consideration of the court, or in connection with the evidence which had already been given, were such as might authorise the jury to draw an inference of fraud. The plaintiff had given in evidence the judgment, proceedings on it, and sale to the plaintiff', and the actual receipt of the purchase money by the defendants; and then, for the purpose, as it is alleged, of proving that the defendant had received and retained the money by fraud, offered to show that previous to the sale the judgment creditor had conveyed the premises to a third person by deeds duly recorded ; and that the under-sheriff who conducted the sale, encouraged tho plaintiff to purchase by assurances that he would get a title : and further, that the plaintiff, after having purchased on these assurances, and finding himself deceived in the title, preferred a petition to the directors of the bank (the defendants) setting forth the particulars, and praying them to refund; but after having thus come to a knowledge of the facts, they nevertheless retain the money. Now in connection with these facts there was no offer to show that the directors actually knew that the debtor had conveyed the property before the sheriff’s sale, or that the encouragement given by the under-sheriff was by their authority or direction : circumstances absolutely necessary to affect them with any thing like fraud. The recording of the conveyance was not prima facia evidence that they actually knew of it, for the act of assembly makes that notice only to subsequent purchasers, and if it were even notice of the fact to the defendants who are judgment creditors, it would also be notice to the plaintiff, who standing in equal knowledge, could with no pretence of reason, allege that he was deceived. But constructive notice is not prima facie evidence of actual knowledge of the fact; the presumption of notice, where it arises at all, being conclusive, even against the truth of the fact; and therefore constructive notice is always insufficient to fix on a party actual knowledge as the ground work of express, fraud, which, and not fraud by implication of law, is the foundation of this action. There might be a case of so gross a nature as to raise a presumption from the fact itself, that the judgment creditor knew the debtor to be without colour of title, as where he had never been in possession or made any sort of claim, or the possession under the eye of the creditor had been held adversely for twenty-one years, and many other'cases of the kind; and there actual knowledge might be deduced from the circumstances ; but that is not this case. So, no presumption could reasonably arise that the declarations of the under-sheriff were made by the authority of the directors. He was not like an auctioneer, the agent of both parties, but of the law ; and therefore till the contrary be shown, he is presumed not to have acted, under particular instructions from the directors, but according to the mandate of his writ. The evidence, therefore, as it was offered, presented facts, which, isolated as they stand in the bill of exceptions, were altogether irrelevant, and so entirely without operation, that I incline to think they might safely have been demurred to, if there were nothing else in evidence. But the plaintiff contends that this may have been only a part of the chain of his evidence, and that what was deficient might afterwards have been supplied. If this were admitted, no court could without error, ever reject.evidence for irrelevancy, as there is no fact so entirely irrelevant as to be incapable of being connected with the question, however remotely, by the intervention of a chain of possible circumstances. But the question is, how did the matter stand as it was pi’oposed to the com;t ? If it was altogether irrelevant, the court might reject it, although it might not perhaps be error to admit it. If it would be relevant, when taken in connection with other facts, it ought to be proposed in connection with those facts, and an offer to follow the evidence proposed, with proof of those facts at the proper times. But the court is not bound to spend its time in an inquiry, which from the showing of the party can produce no results. Dislocáted circumstances may doubtless be given in evidence, particularly if there be no objection to the order of time; but the proposal of the evidence must contain in itself, by reference to some thing that has preceded it, or that is to follow, information of the manner in which the evidence is to be legitimately operative. It is said that from the facts offered here, the jury might possibly have presumed all that was necessary to make out the plaintiff’s case. Juries sometimes assume facts without any evidence at all; but it will not be said that facts, which by themselves, can have no other operation than to confuse and mislead, by inducing a suspicion of the existence of some other necessary facts, where the presumption is not a reasonable or natural one, ought therefore to be admitted. With respect to the matter of the petition to the directors and their refusal to refund, it is impossible to see how it could have any operation in the cause, as it would not be unconscionable in the defendants to retain the money, if it was not unconscionable to receive it.

The second bill of exceptions stands on worse ground still. The plaintiff offered to prove that at the time of the sheriff’s sale, the premises were bound by a mortgage which had been executed by the person from whom the debtor purchased, and that they have since been sold on the mortgage. But the plaintiff purchased at sheriff’s sale only the interest of the debtor affected by the judgment, which was the equity of redemption that was in the mortgagor, who had conveyed nothing more to him. As respects this mortgage, therefore, he obtained all that he paid for, a right to redeem; and if he suffered the 'premises to be sold for the debt secured by the mortgage, he has no room for complaint, on that ground, which is distinct from that on which the claim is attempted to be sustained in respect of the absolute conveyance of the premises.

The third bill of exceptions is to be evidence given by the defendants, of the regularity of the proceedings and sheriff’s sale ; and of there having been printed or written conditions. The evidence was not very material, but unquestionably competent, as tending to prove as far as it went, that all was fair on the defendants’ part; and the existence of written conditions, had a tendency to negative any inference that the under-sheriff had acted under parol instructions.

Then with respect to the charge : What has been said in relation to the first bill of exceptions, is in many respects applicable to this part qf the case. The judge was entirely correct in directing tbe jury .that the action could be maintained only on proof of actual fraud, and that ignorance or mistake in the' purchaser was insufficient; as well as in charging that the defendants were not to be. affected by the declarations of the under-sheriff; unless it were shown that they were made with the defendants’ knowledge and assent. But it is only objected that the judge gave a positive direction as to both law and fact, by instructing the jury that there was no legal evidencé to enable the plaintiff to recover, and. that their verdict ought to be for the' defendants. If there had been facts in evidence, according to the finding of which, the right to the verdict would be decided, either in the one way or in the other, this would have been error ; but such was not the case. Taking every- fact and circumstance given in evidence, to be true (and there does not seem to have been any fact in dispute,) still the plaintiff had entirely failed to make out a case; and the judge might in perfect consistency with his duty, say so. The plaintiff having thus failed in all his exceptions, the judgment is affirmed.

Judgment affirmed.  