
    
      Jesse Ford v. Elly Godbold, sheriff.
    
    Where the plaintiff sought to recover damages for the injury done him, as defendant in execution, by the official misconduct of the Sheriff, in not having entered a sale of his land in the Sheriff’s books, and the jury had found that the plaintiff had made a fraudulent representation of his title at the Sheriff js sale — the Court held, that in law, the false representation of the plaintiff could have no effect on the sale, as between the Sheriff, representing the creditors, and the purchaser, but that it must prevent the plaintiff himself from reaping the benefit of his own fraud.
    
      Tried before Mr. Justice Wardlaw, at Marion, Fall Term, 1847.
    This was an action in the case, brought to recover damages for the injury done to the plaintiff by the defendant’s ofli-cial misconduct, in this : That the defendant had, under various writs of fieri facias against the plaintiff, levied upon the lands of the plaintiff, called the Mill Lands, and at public auction knocked off the same to Thomas Harllee, highest bidder, at $1310: That Harllee having failed to comply with the terms of the first sale, re-sale of the same lands had been made by the Sheriff to John McQueen for $705, and that the Sheriff had neglected to make entry in writing, as he should have done, in his Sales Book, of the sale to Harllee, whereby the plaintiff was injured, &e.
    It appeared that the Sheriff had levied, sold to Harllee, resold to McQueen, and failed to make entry, all as alleged: Further, that all the executions against the plaintiff had been satisfied from subsequent sales: That the “Mill Lands” consisted of a tract on the western side of a creek, which belonged to the plaintiff, and was worth about $500, and of an adjoining tract, with a mill on the eastern side of the creek, which had belonged to Charles Ford in his life-time: That Charles Ford died intestate, leaving as his heirs five brothers and sisters, of whom the plaintiff was one: That the plaintiff became administrator of Charles Ford, and entered upon the lands as lands of the estate of Charles Ford; but although plaintiff was in exclusive possession, and some imperfect contracts had been made between him and some of the other heirs of Charles Ford, no conveyance of any of the other shares had been made to him: That before the sale to Harllee, plaintiff had contracted to sell the lands to one Gaddy, for $1800, to be paid in instalments, with an understanding that Gaddy should buy at Sheriff’s sale for a sum not over $900, and pay the balance over of the $1800 to plaintiff: That at the first sale by the Sheriff, plaintiff endeavored to discourage Harllee and other bidders, by talking of an arrangement with Gaddy, and of lands of Gaddy overflowed by the mill-pond, until the biddings had gone above $1,000, at which sum Gaddy stopped, and then the plaintiff had strongly urged Harllee and others to bid, declaring that the title was good, and after the sale, had said to Plarllee— v You’re stuck, for I have only one share in the landand that purchasers from McQueen had got conveyances from the other heirs of Charles Ford.
    The Presiding Judge said: I thought that unsatisfied creditors of the plaintiff might recover from Harllee the sum lost by the re-sale, if proper entries had been made, and so would, for any loss thereby occasioned to them, have had ground of complaint against the Sheriff, for neglect of duty ; but that if the sale, regarded as a sale by the plaintiff, would, as to the plaintiff himself, have been void for' fraud, the plaintiff had no just cause of action: That if there had been recovery by creditors against Harllee, PXarllee might have recovered over against the plaintiff to the extent of the injury done to Harllee by plaintiff’s misrepresentations; and if this extent equalled or exceeded the difference between the two sales, for which Harllee would have been liable to creditors, Harl-lee might have had from the plaintiff entire reimbursement of the recovery against him; and that therefore the plaintiff could not be damnified by the Sheriff’s neglect to do what would, after the adjustment of the rights of the various parties, have been of no service to the plaintiff.
    To show that the misrepresentations probably equalled in effect the difference of the sales, $605,1 remarked that if the land west of the creek was worth $500, Harllee had estimated the eastern side of the mill at $810, of which one-fifth was $162, and four-fifths (as to which the title was deficient) was $648.
    The jury found for the plaintiff $162. I do not know whether they were misled by any thing I said, or acted upon some notion of value, according to which they supposed the plaintiff had been damnified by the defendant’s misconduct, over and above the effect of his own misrepresentations.
    The defendant moved the Court of Appeals for a new trial, on the following grounds, viz:
    1. Because his Honor, the presiding Judge, notwithstanding the fraudulent misrepresentations of the plaintiff were clearly proved, erred in charging the jury, that they might find for the plaintiff the difference between the value of the plaintiff’s interest in the land, and what he received by the re-sale.
    2. Because, the fraud being proved, Thomas Harllee, the bidder, was relieved from the whole contract, as between him and plaintiff; and the bidder being so relieved in this action, the defendant was not liable to plaintiff; whereas, the verdict assumes to enforce said contract to the amount-of plaintiff’s supposed interest in the land.
    3. Because, if the first bidder was liable to this extent, the plaintiff was fully reimbursed by the re-sale in March, 1841.
    4. Because, if the said bidder was liable on said bid, it was to the execution creditors of the plaintiff who were unsatisfied, and the plaintiff had no right to sue.
    5. Because the verdict of the jury was contrary to law and evidence.
    Harllee & Dargan, for the motion.
    Miller, contra.
    
   O’Neall, J.

delivered the opinion of the Court.

The jury, in finding a less sum than the difference between the sale and re-sale, have most unquestionably established the fact that the plaintiff made a fraudulent representation of his title, at the Sheriff’s sale: otherwise, according to the Judge’s instructions, they must have found $605 instead of $162. Taking the fraud, therefore, as established by the finding of the jury, it is necsssary to enquire what effect it could have, in law, on the sale. As between the Sheriff, representing the creditors, and the purchaser, there is no doubt that the false representations of the defendant in execution can have no effect whatever. In such a case, the rule caveat emptor applies. This is the ruling of Towns v. Turner, 3d Hill, 178, and of Kilgore v. Peden & Johnson, 1st Strob. 18. But here the defendant in execution claims the benefit of the sale, and thereby expects to reap the reward of his own fraud. Such cannot be the operation of the law. The contract, as now attempted to be set up, is to be regarded as made by the Sheriff, as his agent. His claim is, that by the neglect of that agent, in not entering it in his books, (as was his legal duty,) he has been deprived of the advantage of it. It is true, if the Sheriff had entered it in his books, he could have enforced it for the creditors-: but they are not injured, or complaining. The defendant in execution alone asks to have it enforced. If it were spread on the Sheriff’s books in the most formal manner, the fraud now proved would vitiate the. sale. The case of Minter v. Dent, 3d Rich. 205, is a full and clear authority for that point. For it ruled that a defendant in execution, suing for the price of a slave sold at Sheriff’s sale, might be defeated by a material false representation, made by him at such sale. That is exactly the case before us, with the exception that this suit is brought to recover the price of a tract of land sold, and tha-t of a slave. The difference in the subject matter can make no difference in the rule. The misrepresentation of the title here, was such as went to destroy the value of the purchase. To nearly two-thirds of the land in value, lying east of the creek, the plaintiff here had no other title than a share of one-fifth. This was enough to justify any purchaser from another dealing with him, not as an agent of the law, in refusing to complete the purchase. The motion for a new trial is granted.

Richardson, J. Evans, J. Wardlaw, J. Frost, J. and Withers, J. concurred.

Motion granted.  