
    N. Ramsay, James Windsor, and William Clarkson and others, Trustees of the Church of the Mediator, vs. James T. Sims, N. A. Peay, and H. K. Witherspoon.
    
      Sheriff’s Sale — Account.
    Where a debtor’s property, against whom there are judgments and executions to a large amount, is sold, at private sale, under an arrangement between the debtor and all his judgment creditors, who could by any possibility be benefited by the sales, and with the consent of the Sheriff, and fair prices are realized, and the money arising from the sales is applied to the oldest judgment and execution, a junior judgment creditor, who did not consent to the sale, may have the property levied on and sold by the Sheriff'; and a purchaser at the Sheriff’s sale, with notice, will acquire a good title as against a prior purchaser at the private sale.
    If the purchasers at such private sale, or the creditor who received the proceeds, have any equities to prevent the Sheriff’s sale, they should aPPly to the Court for an injunction to restrain the Sheriff from selling; a public notice forbidding the Sheriff’s sale will not be srtfflcient.
    Where a debtor’s property is, by consent, sold at private sale by the oldest judgment creditor, and he receives the money and warrants the title to the purchaser, and the property is afterwards sold at Sheriff’s sale, and the warrantor receives the proceeds, a bill in equity may, it seems, be sustained by the purchaser at the private sale, against the warrantor, to compel him to account for the proceeds of the Sheriff’s sale.
    BEFORE CARROLL, OH., AT RICHLAND, JUNE. 1859.
    There being a large number of judgments and executions against Joseph A. Black, the oldest of which was a judgment by confession for fifty thousand dollars, given on September 19, 1848, and owned, principally, by N. A. Peay, and, in part, by James Fenton, he, Joseph A. Black, on November 9, 1853, gave Peay a power of attorney, authorizing him to sell, after due notice, at private or public sale, on some suit; able sale-day, on a credit, or otherwise, as he thought best, all his, Black’s, property, real and personal, mentioning the same in a schedule thereunto annexed. Most of the other judgment creditors of Black gave their consent in writing to this arrangement; and Charles Neuffer, the then Sheriff of Richland District, also consented, on condition that he should be paid commissions on the sales, as if they had been made by him.
    Sales under the power of attorney were made of all Black’s property in December, 1853, and January, 1854. They were conducted openly and fairly, and full prices were realized. Amongst the property sold was a lot of about two acres in Columbia. It was divided and sold in three parcels. The eastern parcel, containing half an acre, was purchased by the plaintiff, N. Ramsay, for one thousand seven hundred and fifty dollars; the central parcel, containing about one acre, by the plaintiff' James Windsor, for three thousand and fifty dollars; and the western parcel, containing half an acre, by James K. Friday, for eight hundred and seventy-five dollars. The conveyances to the purchasers were given in the name of Black by his attorney, N. A. Peay, and Peay and Fenton executed separate instruments under seal, whereby they jointly warranted the titles to the purchasers. The net proceeds of all the sales amounted to about eighteen thousand seven hundred dollars, and were applied to the judgment for fifty thousand dollars, leaving a large balance of that judgment unpaid.
    On December 18, 1854, Friday sold and conveyed, for one thousand five hundred dollars, the parcel he had purchased, to the plaintiffs, William Clarkson and others, trustees of the Church of the Mediator, and they shortly afterwards erected valuable improvements on the same, and expended in such improvements considerable sums of money.
    On October 21, 1854, Windsor and the defendant, James T. Sims, entered into a bilateral written contract, by which Windsor agreed to sell to Sims the central parcel for three thousand seven hundred dollars, “and to make good and ■sufficient titles to the said property,” and Sims, having paid one hundred dollars in cash, agreed to pay the balance of the purchase-money in instalments, with interest. Before this contract was made, Windsor had mortgaged the premises to the Columbia Building and Loan Association for two thousand dollars. Sims was put in possession of the premises, and expended considerable sums of money in making improvements thereon. In April, 1855, he paid Windsor .one hundred dollars more on account of his purchase, but, learning about that time of the mortgage above-mentioned, he declined making any further payment.
    Amongst the judgments against Black at the time of the sales of his property by Peay were two, owned by Mrs. N. M. Caldwell, one in her own name for one hundred and ninety-five dollars fifty cents, and costs, and the other in the name of J. T. Goodwyn for two hundred and thirty-two dollars .thirty-seven cents, and costs, both signed October 8, 1852. This creditor had not consented to the sales made by Peay, and in the fall of 1855, Jesse Dent, the then Sheriff of Bichland District, by direction of Mrs. Caldwell’s attorney, levied on the whole of the aforesaid lot of about two acres, as Black’s property, and on sale-day, in October, 1855, he sold the same to Sims for six thousand three hundred and twenty-five -dollars, who paid the purchase-money and received a conveyance from the Sheriff. The sale was publicly forbidden on behalf of the plaintiffs, hnd also on behalf of Peay, who was present, and who was the only bidder besides Sims. The proceeds of the sale were applied to the judgment for fifty thousand dollars, and paid by the Sheriff to Peay.
    Before the Sheriff’s sale Bamsey had expended a considerable sum in improvements on the parcel purchased by him. The defendant, H. El. Witherspoon, was his tenant, and, after the salé, he refused to pay him rent. Bamsay then distrained for the rent due him, and Witherspoon issued writs of replevin. Ramsay also obtained from a Court of magistrate and freeholders a writ to have Witherspoon ejected from the premises, as a tenant holding over. ■ This was done, and Witherspoon applied to a Judge for a writ of certiorari, which being refused, he appealed. Sims brought an action of trespass to try title against Ramsay, and gave notice to the trustees of the Church of the Mediator that he was the owner of the parcel they were in possession of, and demanded a recognition of his title.
    Sims, in his answer to the bill, said, that he removed from Alabama to Columbia in the fall of 1854, and that his information in reference to the facts stated in the bill which had occurred prior to that time had been obtained since the fall of that year. He further stated (but this part of his answer was not responsive) that after the levy and before the Sheriff’s sale he applied to Peay, and proposed to him that he, Peay, ought to purchase the property, and thereby protect the titles of all the claimants; that Peay declined, and that, when the bidding at the Sheriff’s sale was going on, he approached Peay and appealed to him, saying it was unnecessary to run the property up, and if there could be an understanding that his, Sim’s title should be protected, he would cease bidding, and that Peay again refused.
    The prayer of the bill was, that Sims be enjoined from prosecuting his action of trespass to try title against Ramsay, and from bringing an action to recover possession of the parcel claimed by the trustees of the Church of the Mediator; that Witherspoon be enjoined from prosecuting his writs of replevin, and his appeal from the order refusing a writ of certiorari; that the contract between Windsor and Sims be rescinded, and possession restored to Windsor, or that specific performance be decreed, and Sims be required to pay Windsor according to the terras of his contract; that, if the plaintiffs’ titles should not be adjudged valid, then that Peay be required to make good his warranty to plaintiffs respectively, and for general relief.
    The bill stated and the answers admitted that Eenton was dead, and that he died insolvent.
    Peay died after his answer had been prepared and sworn to, and his executors, having been made parties, adopted the same and'filed it as their answer. In this answer no'objection was taken to the jurisdiction of the Court in reference to the claim for relief under Peay’s warranty of the titles of the plaintiffs.
    The decree of his Honor is as follows:
    Carroll, Ch. The material facts involved appear in the pleadings.
    Of the questions that have been presented, the most important is that which relates to the purchase by the defendant, Sims, at the sale by the Sheriff Jesse Dent, in October, 1855. To the allegation of the bill that that sale was brought about by his procurement, and at his instigation, James T. Sims opposes his explicit denial, which has not been controverted by proof. It was contended that the sales made by N. A. Peay in December, 1853, and January, 1854, were with the concurrence of all the judgment creditors of Joseph A. Black, who could rationally hope to be paid out of the property sold, and with the consent of Charles Neuffer, then Sheriff of Richland, to whom were paid the full costs and commission that he would have been entitled to had he sold the ‘ property directly; that the entire proceeds of the sale were appropriated towards payment of Black’s judgment debts, according to their legal priority, and that therefore the sales in question should be regarded as having been made substantially by the Sheriff himself. It does not so appear to the Court. The sales referred to were effected through an auctioneer appointed by Peay, and the conveyanees for the lots sold were by, deeds executed by Joseph A. Black through his attorney in fact, N. A. Peay. The allowance of costs and commissions to the Sheriff) it is to be inferred, was to induce him to forbear interfering under any of the numerous executions against Black then in his office. It is apprehended that the sales in question must be regarded in substance, as they were in form, sales by Joseph A. Black himself. That they were unimpeachably fair must be conceded. To advance the sales and secure the highest prices, the lots in the town of Columbia were sold upon credit, Peay and James Eenton engaging to guarantee the title, and the wife of J. A. Black consenting to relinquish her dower to the purchasers respectively. As might have been expected, the prices obtained for the lots were fair and full, and no complaint is made upon that head. It is true that there were judgments and executions against Black prior in date to those of Mrs. N. M. Caldwell and J. T. Goodwyn for sums in the aggregate greatly exceeding the value of Black’s entire estate. Had the Sheriff permitted the whole of Black’s property (supposing it to be personalty) to be removed from the State, no action could have been maintained by Mrs. Caldwell or J. T. Goodwyn against him, because, upon its being shown that, had the property been sold by the Sheriff) no part of the proceeds would have reached their executions, it would have appeared that they had sustained no injury. Gains vs. Downs, Harp. 72. It is argued that if the Sheriff would not have been answerable to the junior judgment creditors referred to, for allowing Black’s property to be removed, still more clearly would he not have been responsible to them for simply neglecting to levy and sell; and, if so, then the plaintiffs in the junior executions had no legal remedy to have them enforced; that the rights of the plaintiff in execution indicate and limit the rights of the purchaser, and if the junior executions be not enforceable, it results that the sale under them was inoperative and void. The force of the argument is not perceived. Judgments at law bind the land of the debtor according to their priority. The liens for their respective amounts which they impose are not, however, to be understood as successive assignments of equivalent portions of the debtor’s land. If such was their character, there would be great merit in the view that has been suggested. But it is a misconception so to regard them. They do not constitute property in the land itself, nor a right of action for any portion of it, but are more properly charges upon it. 2 Story Eq. S. 12,15. The lien, after all, amounts only to a security against subsequent purchasers and incum'braneers. The judgment creditor gets no estate in the land, and, though he should release all his right to the land, he might afterwards extend it by execution. 4 Kent Com. 472; JBraic vs. Duchess of Marlborough, 2 P. Vms, 491.
    The judgments at the suit of Mrs. Caldwell and J. T. Goodwyn, upon being duly signed and entered, undoubtedly bound the lots in controversy. Although no portion of the proceeds arising from the sale under the executions founded upon those judgments was applicable to them, the sale was nevertheless effectual. An execution is considered as a mere authority to sell, without regard to the distribution of the fund afterwards. State vs. Laval, 4 McO. 336. It does not appear that the liens imposed by the judgments of Mrs. Caldwell and Goodwyn were removed, or in anywise impaired, prior to the sale by Sheriff Dent, in October, 1855. Certain of the senior judgment creditors of Black consented to the sale of his property by N. A. Peay. But there is no evidence, nor is it alleged that Mrs. Caldwell and J. T. Goodwyn, or either of them, ever assented to such, sale, or were at all cognizant of it. The Court perceives no sufficient grounds to authorize its interference with the defendant, Sims, in his enjoyment and assertion of the legal title which he acquired under the conveyance from the Sheriff, Dent. The relief which is prayed on behalf of the plaintiff^ Bamsay, against the defendant, H. K. Witherspoon, is incidental to that sought against Sims, and must be denied, as that has been. As the defendant, Sims, was in possession of the lot conveyed to James Windsor by Joseph A. Black, under a contract with Windsor for its purchase, he cannot set up the title he acquired from the Sheriff as hostile or paramount to that of his vendor, or repudiate his agreement in that behalf.
    There is no reason to doubt that Windsor believed himself the owner of the lot, unincumbered by any judgment debt against Black at the time of its sale to Sims. If a vendee, entering before conveyance, purchase an incumbrance or outstanding title affecting the land, the vendor is entitled to the benefit of such purchase, upon reimbursing the pur-, chaser what he has paid to perfect his title. Scott vs. Wood-side, Car. Law. Jour. 178; Sugd. Vend. 188; 1 White’s Lead. Cas. 57. From the price of the lot under his contract with Windsor, Sims has the right to retain its cost at the sale of the Sheriff, Dent, but no more.
    In contracts for the sale of real estate, the agreement to sell implies an agreement to convey a good and unincumbered title, unless the contrary appears by countervailing stipulation or evidence. Sugd. 24; Proihero vs. Smith, 6. Rich. Eq. 333.
    But there is no occasion here to resort to such implication.. Windsor having expressly engaged to make a good and lawful title before he can be admitted to the benefit of his contract with Sims, it is incumbent upon him to remove the incumbrance of his mortgage to the Columbia Building and Loan Association.
    As the sale by the Sheriff, Dent, to James T. Sims is sustained, it results that the executors of N. A. Peay are responsible to the plaintiffs, under the covenants of warranty executed by him and James Eenton, already referred to. Eenton is dead and insolvent, and is not represented by any party to this suit. But no objection on that account has been made by tbe executors of Peay, and tbe insolvency of Fenton’s estate renders unavailing, probably, any claim by them for contribution.
    It is ordered and decreed that the bill be dismissed in respect to so much thereof as seeks to impeach the title of James T. Sims, under his conveyance from the Sheriff) Jesse Dent, and to restrain him in the assertion at law of his said title, as also in respect to so much thereof as relates to H. K. "Witherspoon.
    It is further ordered and decreed, that if the plaintiff, James Windsor, shall, within thirty days next after the filing of this decree, disincumber the lot sold by him-to James T. Sims of tbe mortgage above-mentioned, then that the Commissioner take an account of what remains unpaid of the purchase-money due by said Sims to James Windsor for said lot, after deducting therefrom the price, to be ascertained by the Commissioner, of said lot at the .sale made by Jesse Dent, Sheriff) to said Sims; and that the balance of the purchase-money, when ascertained, be paid by J. T. Sims to said Windsor, upon the latter executing to the said J. T. Sims a proper conveyance for said lot, to be settled by the Commissioner. But if .the said James Windsor shall fail to disincumber the said lot of the mortgage aforesaid within the time mentioned, then it is ordered and decreed that his bill stand dismissed out of this Court as against the said J. T. Sims; and it is further ordered, that the Commissioner inquire and report what sums are of right due and payable to the plaintiffs, respectively by the executors of N. A. Peay under his covenants of warranty aforesaid.
    The executors of N. A. Peay, deceased, appealed from the decree, upon the grounds :
    1. That the sale made by N. A. Peay under the power of attorney from Joseph A. Black was a valid and legal sale, notwithstanding the existence of the two inconsiderable and unsatisfied junior executions of N. M. Caldwell, and J. T. Groodwyn for Mrs. Caldwell, against Joseph A. Black, for the following reasons, viz.:
    All the judgment creditors of Joseph A. Black, whose claims could by any possibility be reached by the sale of all of his property, real and personal, had given their written consent that said sale should be made by the said N. A. Peay instead of by the Sheriff.
    That Sheriff Neuffer, having assented that the sale of Black’s property should be made by Peay under the power of attorney, and having received his commission thereon as Sheriff' thereby adopted said sales as his own, and virtually made them Sheriff’s sales.
    That the object in making said sales by an agent instead ■ ' of by the Sheriff, was to enable the sales to be made on a credit, and thus cause the property to sell for better prices, and thereby benefit the judgment creditors.
    .That said sales were bona fide, equitable and fair, and by extending credit to purchasers, and by the voluntary guarantee by Peay and Eenton of the titles to the'property sold, the prices thereof were greatly enhanced, and the creditors of Black benefited to that extent.
    That said sales being thus fair and equitable, and Black’s creditors highly benefited, and nobody in any manner injured or prejudiced thereby, it would be contrary to the principles and practice of this Court to set them aside on a merely technical ground, viz., the existence of two small judgments, which have not been reached, and by no possibility could be reached by the sales of all of Black’s property, nor by double that amount.
    2. They respectfully except to so much of the decree as directs the Commissioner to take an account as against the executors of Peay, of the sums due and payable to the purchasers, whose titles had been warranted by Peay and Eenton jointly, on the ground that this Court will not undertake to assess tbe damages for a breach of warranty of title to real or personal property.
    The trustees of the Church of the Mediator and Nathaniel Ramsay and James Windsor appealed from tbe decree sustaining the purchase of the lots by J. T. Sims, and adopted the first ground of appeal taken by the executors of Peay, and the reasons therein assigned for reversing the decree.
    2. Sims had notice of appellants’ rights before he bought, and he ought not to be permitted, in this Court at least, to avail himself of the legal advantage he has sought to secure.
    3. It is respectfully submitted that if Sims’ purchase is set aside, he will merely lose the benefit of a speculation,- and, provided the purchase-money he paid is refunded, he will sustain no loss. The estate of Peay received the benefit of the money, and should be required to refund.
    4. And it is further respectfully submitted, that if Sims’ purchase is sustained, he should be required to pay to these appellants or to the executors of Peay the value of Mrs. Black’s dower, which was assigned to these appellants; all parties being before the Court.
    
      Arthur and Talley, for the executors of Peay.
    
      Be Saussure, for plaintiffs.
    
      Bausltett, for Sims.
   The opinion of the Court was delivered by

Dunkin, C. J.

The rule of Sheriff’s sales is caveat emptor. No one is obliged to purchase; but the officer is obliged to sell, if bidders can be found. It is for the interest of the public, not only of the creditor and the debtor, but also of purchasers, that these sales should be protected. The bidder is entitled to the legal interest of the defendant in the execution and whatever the plaintiff" had the right to sell, neither more nor less. The purchaser must look to that; and no infirmity in the title of the defendant, no defect in the quality of the article sold, will release him from his obligation to comply with his bid. So, on the other hand, mere inadequacy of price, however startling, in the absence of all fraud, will afford no ground to impeach his purchase. See Colman vs. Bank of Hamburg, 2 Strob. Eq. 285. The plaintiff in a junior execution, has the right to require that his debtor’s property shall be sold by the Sheriff" not only that free competition may secure a full price, but that he may have the official obligation of the Sheriff for the due and regular appropriation of the sales according to the legal priority of the executions. It is necessary to bear in mind these general and well-settled principles when the circumstances of this case are under consideration. This defendant, Sims, according to his answer, removed from Alabama to Columbia in the fall of 1854, and on 21st October, 1854, purchased from Windsor the central lot for three thousand seven hundred dollars, took possession of the premises, and had made improvements of considerable value, when, in. the spring of 1855, he discovered that the premises were under mortgage by Windsor for two thousand dollars. Having paid one hundred dollars on his purchase, he declined to make any farther payment until the incumbrance was removed. In the succeeding fall he found the lot which he had thus purchased from Windsor, with the adjoining lots on each side of him, constituting together two acres, levied on by the Sheriff of Eichland District, under two executions against the former owner, Joseph A. Black, and advertised by the Sheriff to be sold in a body on the sale-day in October. The answer denies any agency or interference whatever on the part of the defendant in procuring this levy, and the Chancellor reports that this denial was uncontroverted by proof at the hearing. Nor does the sequel prove that he could have any reasonable ground to promise himself advantage from such supposed machinations or contrivance. With the knowledge of an incumbrance on the part of his immediate vendor, of which he had not been originally advertised, and the prospect of an ejectment by a purchaser at Sheriff’s sales, under an execution against the former owner, the defendant, Sims, may well have entertained the embarrassment which would induce a proposal to N. A. Peay, which the defendant avers to have been made while the property was under advertisement. Of the proposal itself there is no evidence, except as derived from the answer which, not being responsive in this particular to any charge in the bill, cannot avail the defendant. But it is suggestive of the relative duties' of the parties under the then existing emergency. Sims knew or had been informed of the sale by Peay, as attorney of Black, to the plaintiff His knowledge extended no further. He was ignorant of the amount which had been received by Peay, or whether it had been applied by him to the executions in the order prescribed by law, or of any other matter relating to his transaction with his principal. A third person, if permitted to bid off the property, might have even less knowledge than himself. Under these circumstances the obvious duty of N. A. Peay was to apply for the aid of this Court to enjoin the further proceedings under the junior executions. He was best able to say whether he had done all which the junior execution creditors had a legal right to require. If the plaintiffs were able to establish such equities, they might themselves have impleaded both N. A. Peay and the execution creditors. But it would be very detrimental to sales by the Sheriff if a notice to the bystanders by the defendant, or any other person, should take the place or have the effect of an injunction. If the defendant, .Sims, had relied on this and refrained from bidding, he might too late have discovered his error. Peay himself bid on the property to a larger amount than he had originally received in his sales to the plaintiffs, and when the defendant, Sims, paid his bid of six thousand three hundred and twenty-five dollars, the sales were received by N. A. Peay as the eldest execution creditor, who was thus twice paid for the same land. Whatever demands, legal or equitable, may exist between the plaintiff and the executors of N. A. Peay, deceased, the Court concur with the Chancellor that they have no ground to implead the defendant, J. T. Sims.

As between the plaintiff, James Windsor, his immediate vendor, and the defendant, Sims, there might have been this equity, that if he had purchased the central lot at the October sales, in 1855, for a trifle, the title thus acquired would have perfected Windsor’s conveyance, and Sims would be entitled to credit on his purchase only to the extent of his bid at Sheriff’s sale. But the facts do not warrant the application of this principle, and the decree of the Chancellor has given effect to the only equity which subsisted between them.

The question presented by the last ground of appeal on the part of the executors of N. A. Peay, deceased, was not made in the pleadings, either by demurrer or otherwise, nor has it been argued in this Court. The Chancellor may well have supposed, as is intimated in his decree, that there was no objection to the account on the part of the executors of N. A. Peay, deceased, and not being urged here, the Court might pass it without further notice. But it may be proper to notice it to prevent misapprehension. Certainly this Court will not entertain jurisdiction to enforce damages for a breach of warranty. This is the general rule. But the defendant, Peay, by his answer, making no objection to the jurisdiction, admits that he received from the Sheriff the proceeds of the sale of the land which he had previously sold to the plaintiffs and whose title he had warranted. It would be difficult for him to resist the claims of the plaintiffs in this Court for an account of the sum thus received by him. It seems that the amount exceeded the purchase-money paid by the plaintiffs. The Chancellor, with a view of preventing protracted litigation, and assuming the acquiescence of the executors of Peay, restricts the accounting to the amount of liabilities under the breach of warranty, and the plaintiffs have not objected to the measure of relief afforded to them by the decree in this behalf.

It is ordered and decreed that the decree of the Circuit Court be affirmed, and that the appeal be dismissed.

Wardlaw and Inglis, J. J., concurred.

Decree affirmed.  