
    NOVEMBER TERM, 1844.
    Robert L. Adams v. Samuel Griffin.
    Where a sheriff offers land for. sale under an execution, and it is bid off at a price which the bidder afterwards refuses to pay, and the sheriff readvertises and sells the land the second time, and it is again bid off by the same person at a less price than his first bid, the sheriff cannot maintain an action against the purchaser for the difference between the first and second bid, without showing that he has been rendered liable, or suffered some damage thereby.
    Error from the Circuit Court of Yazoo county.
    The case is clearly stated in the opinion of the Court.
    
      Winston Banks, for plaintiff in error.
    The position assumed in support of the demurrer was, that the declaration omitted to state that prior to the institution of the suit a deed had been presented by Adams the sheriff to Griffin, formally' conveying the premises, and a demand made of the purchase-money. To the refutation of this position, I shall principally confine my argument. There were-sufficient written memoranda of the purchase of the land, being properly described in the levy of the sheriff, and the purchaser and consideration fully designated in the sale book by the clerk. Chitty on Contracts, p. 123, note. All of these facts'were sufficiently expressed by the allegations of the declaration, for we need not therein state that the contract was in writing. 1 Chitty on Pleading, 254, 332. The levy describing the land, the sale book and return of the sheriff noting the purchaser and the price, would, upon payment of the purchase-money, have invested him with all the right, title and interest of the defendant in the execution under which the sheriff sold. 2 Cainés’ Reports, 61. For the purpose of enabling the purchaser to perpetuate upon record the testimony of his title, he may, under our statute, upon payment of the purchase-money, require a formal deed of the sheriff. In sales under execution, the sheriff is a special auctioneer, his duties being limited by law, and upon payment of the purchase-money, he would be compelled even by his oath of office to make the necessary deeds to purchasers. The sheriff is agent for the plaintiff in the execution, the defendant, and the purchaser; and the whole doctrine of precedent conditions .and concurrent promises is, inapplicable to him as a vendor. At sales he is a mere instrument to carry into effect the requirements of law,, and a deed from him is only a memorial of what has been done by the operation of thé'law. An ordinary vendor, after the completion of a contract and'the payment of the purchase-money, might refuse to execute a deed, and before the purchaser could compel him, he might convey to an innocent purchaser, for a valuable consideration, the same lands, and thus most wrongfully deprive the first purchaser of all the benefits of his purchase. To prevent .such inconveniences the rule was adopted requiring a party to perform, or at least offer to perform, all concurrent obligations on his part before he can insist upon the performance of those of the other party. The sheriff can take no advantage by which to deprive a party of the benefits of his purchase. He is compelled to return on the execudop the levy and sale formally set forth, and thereby the purchaser becomes fully invested with title — such at least as the lien of the judgment on which the excution emanated can afford. He cannot sell the land again under the same execution, nor can he in any way disturb the title' of a purchaser until he could be compelled to make a formal deed. To him as a vendor.the rule , above cited cannot be applicable. But independent of this reasoning, the payment of the purchase-money is clearly a condition precedent under the law requiring him to make deeds to purchasers. Rev. C. p. 212, sec. 55.
    Otherwise he would also be deprived of the compehsation allowed him by law for making the deed, whenever a purchaser should refuse to accept the same. The law cannot therefore require him to make a deed before the payment of the purchase-money, as from the purchase-money he can alone receive his payment for the making.
    But that the payment of the purchase-money was a condition precedent to the making of the deed, is apparent from the fact, that upon such payment, he was not only to make a deed, but to deliver to the purchaser immediate possession of the land; and both these acts constituted but one duty on his part. R. C. p. 212, sec. 55. These acts were to be done by the sheriff concurrently, and the meaning of the law must certainly have required that the purchase-money should be paid prior to the delivery of possession, as it was physically impossible that all the acts should have been done at the same time. But the latter act required of the sheriff'was repealed by subsequent legislation- By such repeal the time at which the other concurrent act, to wit, the making of a deed, was to be done by the sheriff,' could not have been changed, and consequently after such repeal, the payment of the purchase-money continued a condition precedent to the making of the deed.
    I shall now lightly touch upon a position not disputed in argument below, that the action was rightly in the name of the sheriff, and properly brought. The sheriff is liable to parties to an execution for all injuries they may sustain for any negligence or omissions on his part at such sale. Upon the forfeiture of a bid and resale by the sheriff, the fii;st purchaser becomes immediately liable to the sheriff as agent for all parties for any consequential damage that may be sustained for tliis omission of duty. Chitty on Contracts, p. 124. From the reasoning and authorities above set forth, it is very clear to:my mind, .that the Court below erred in sustaining the demurrer to plaintiff’s declaration.
   Mr. Justice Claston

delivered the opinion of the Court.

This was a special action on the case brought by the plaintiff in error, as sheriff of Yazoo county, against the defendant in error, to recover the loss sustained in the sale of a tract of land under execution, which was bid off by the defendant, and for tvhich he refused to pay. * The land was resold, and again purchased by the defendant, at a lower price than on the first sale, and. this action is brought for the difference.

The declaration sets forth the execution, the levy on the land, the advertisement and sale to the defendant at the price of $120, and his refusal to pay. Then that in consequence of his failure to pay, the plaintiff, as sheriff, was bound to re-advertise the land ; that he did so ; that it was sold a second-time to defendant for $5, and that the defendant by reason thereof became liable to pay the plaintiff, as sheriff, the sum of $115, the difference between the first and second bid. To this declaration there was a general demurrer, which was sustained by the Court' below, and the cause brought by writ of error to this Court.

We have made this synopsis of the declaration, that the point decided may be plainly made to appear.

The ■plaintiff’ does not show that he has any interest in the matter, or that he has sustained any damage by the act of the defendant. If any one has been injured, it is either the plaintiff1 or the defendant in the execution under which the sale took place. If the plaintiff lost his debt by the misconduct on the part of the bidder, he has the right to sue; if the property of the defendant was sacrificed in consequence of it, he received the injury, and the right of action was in him. The present plaintiff was rendered in no way liable by the act, and sustained no loss, so far as the declaration discloses, and he can therefore maintain no action. The íai&ti’c pav the bid did not of itself render the sheriff liable to execution.

In the case of personal property, where th bid was not paid, it has been holden, that thel/sheriff' from the person who made the bid. Shaw v. Smith, 9 Yerger, 97.

On the salé of land under execution, when to the purchaser a deed, and demanded thé amount** cided that he could recover the amount of the bid in assumpsit. Tate v. Greenlee, 4 Devereux’s Rep. 149.

The present case is unlike either of these. The first sale wras not sought to be enforced, but a resale was resorted to. It does not appear whether the execution was otherwise satisfied, or still remains unpaid.

It is not intended to decide, that upon the state of facts disclosed, there is no liability on the part of the defendant, but only that no right to enforce it is shown by this plaintiff.

The judgment is affirmed.  