
    Samuel Mathews, State Commissioner, vs. Caswell R. Clifton.
    After a sheriff has made a sale of real estate under execution to A., and subsequently, at the request of A., his bid, by B.’s consent, is transferred to B., who assumes to the sheriff to pay it, and fails to do so, the plaintiff in execution cannot have the property resold, and hold B. liable for the difference between the first bid made by A., which was assumed by B., and what the land sold for on the last sale. In such case, the first sale would not be obligatory on B. as a sheriff’s sale.
    On appeal from the circuit court of Hinds county; Hon. George Coalter, judge.
    James R. Young, state commissioner, brought an action of indebitatus assumpsit, against Caswell R. Clifton. The plaintiff, in his declaration, alleges, in substance, that the commissioners of the sinking fund had obtained a judgment against John A. Grimball &c., on which an execution issued, which having been levied on slaves, a forthcoming bond was executed and forfeited.
    A fi-fa. issued on the forthcoming bond, which was levied on certain lands as the property of John A. Grimball; said lands were, on the 15th of May, 1843, offered by the sheriff for sale, when Francis S. Heard became the purchaser at $1600. On the 15th of June, 1843, Heard transferred his bid to Clifton, who then wrote to the sheriff to insert his name as purchaser, in lieu of the name of Heard, and that he, Clifton, “ would make the necessary arrangements.” The sheriff returned that Clifton had not paid said $1600; that a second venditioni exponas issued, in virtue of which the sheriff sold the same land, and John Shelton purchased it at $50; that the original judgment remains unpaid, except by said forthcoming bond, and that by reason of these facts Clifton became subject and liable to pay Young, as state commissioner, $1550, and being so liable, promised, &c., and has not paid. To this declaration a general demurrer was sustained, and Young appealed.
    Hutchinson, for appellant,
    cited Adams v. Griffin, 3 S. & M. 556-559.
    
      Daniel Mayes, for appellee.
    The judgment below should be affirmed for various reasons :
    1. If an action can be maintained by the commissioners of the sinking fund, or by Young, it should be in form ex delicto. There was no privity of contract between Clifton and the commissioners, or between Clifton and Young.
    
      2. But if an action, either ex contractu or ex delicto, would lie by the commissioners, or by the state, (the real beneficiary,) against Clifton, yet Young, the state commissioner, cannot sue in his own name, for there is no act of assembly vesting in him the legal title and legal cause of action, and there was no promise to, or contract with, him. He is authorized to enforce by suit the payment of certain claims; but so may every agent or attorney do, yet not in his own name. Like every other agent, he must institute his proceedings in the name of the person in whom is the legal title to the thing sued for.
    
      3. If the commissioners of the sinking fund have cause of action, it is not against Clifton. Heard was the purchaser at sheriff sale. Clifton, thirty days thereafter, writes to the sheriff to insert his (Clifton’s) name as bidder, and that he would make the necessary arrangements. It is not alleged that the sheriff did return that Clifton was the purchaser, but it is alleged that he did not pay the money bid. His contract, if he made any, was with Heard, after the sale. His promise to make the necessary arrangements was a promise to the sheriff after the sale. All the facts show that he was no party to the sheriff’s sale, and the remedy, if any, is against Heard, to whom, and to whom only, Clifton is responsible, if to any one.
    4. The declaration contains no allegation that Heard did not pay the money bid by him. The allegation is, that Clifton did not pay it.
    5. It is not alleged that the defendants in the execution are insolvent, or that other process of execution has been taken out against them and returned nulla bona. It is alleged, that, by Clifton’s failure to pay, plaintiff lost $>1550; but this cannot be, unless the sheriff had a right to release Heard, and unless the defendants were insolvent. The former, that is, the right of sheriff after the lapse of thirty days, is denied. The latter, the fact of insolvency, can in a court of law be tested only by process of execution.
    6. The land sold by the sheriff, and purchased by Heard, is not (in the declaration) at all identified or described. Whether it was situate in Hinds county, and subject to be levied on, does not appear. It should be identified, that we might show that the sheriff’s sale and deed would convey no title, and, therefore, that we were not bound to pay for it.
    7. It is not even alleged that-Grimball had any estate in the land subject to execution. It is only alleged that land was levied on as the land of Grimball. That may well be, and yet he might have had no estate in it subject to sale.
    8. It is not shown when the execution was returnable. The levy may therefore have been after the return day, and void.
    9. It is not shown where the sale was made. By law it can only be made at a particular place and on certain days, and within certain hours. A presumption that the sheriff performed his duty may be indulged to sustain these facts when alleged, but the presumption of a fact does not render the allegation of that fact unnecessary. The declaration should allege every fact essential to the validity of the sale, and legal presumptions of fact may then come in to supply the place of proof.
    10. The ground of demurrer, however, on which I mainly rely, remains to be stated.
    I contend that., where a sheriff sells land under execution, he has his election. He may, in the first place, insist on the execution of the contract, tender a deed, and sue for and recover the purchase-money, or, secondly, in default of payment, he may disaffirm the sale, and proceed again to sell the land; but that he cannot resell land and hold the purchaser for the difference, nor can the plaintiff do so.
    The cases of Hand §• Huddleston v. Grant, 5 S. & M. 511, Hyskill v. Givin, 7 Serg. & Rawle, 369, and Nichol v. Riddley, 5 Yerger, 63, are cases in which the sheriff sued for the whole purchase-money. Adams v. Griffith, 3 S. &. M. 556, is a case in which the sheriff resold, and it was held he could not recover. In the last-named case is a dictum that the plaintiff in the execution might maintain an action, if he lost, his debt. No question of the kind arose in the case. It is, therefore, supposed it will not be considered as decided.
    I do not contend that where the sale is of personal property, the sheriff may not resell, and hold the first purchaser for the deficit. But I do contend that the principle upon which this may be done is wholly inapplicable to sales of land. That principle is conceived to be this. When goods are sold, whether at private sale or under execution, so soon as the bargain is struck, the title to the goods vests in the bargainee, and to the money in the bargainor; but the bargainee may not take them away without first paying the price.
    The goods remain with the bargainor, as a pawn or pledge for the price; he has a right so to consider and treat them. If they be not paid for at the proper time, he may, as in case of the 
      pignus, pawn or pledge, sell them to raise the purchase-money, and. by so much as they fall short of paying that purchase-money does the purchaser remain indebted. It is precisely as it would have been had the sale been made to reimburse borrowed money for which the goods were pawned.
    By the second sale, the purchaser takes the title which vested in the former purchaser when the goods were knocked down to him. By his failure to pay, the title did not revest in the sheriff, and then pass from the sheriff to the second purchaser, but passes from the sheriff to the first purchaser by the first, and from the first purchaser to the second, by the second sale. The sheriff, in making the second sale, acts as the agent of the purchaser at the first. In transactions between private persons, the sale being made, the vendor does not rescind the contract by reason of the non-payment, and then proceed to make a second sale of the goods, as his own; but he affirms the first sale, claims the purchaser as his debtor for the price, and proceeds to sell his debtor’s goods to raise money for his debtor, with which to pay the debt contracted by the purchaser of the same goods.
    When the sheriff levies or takes in execution goods, the debt for which the execution issued is by the levy satisfied, the title to the goods vests in the sheriff, and he sells them to raise the money which he was commanded to levy; and all his right, so far as it relates to the passing of title to the purchaser, to retain till the purchase-money is paid, to sell again on default of such payment, and to recover the deficit from the purchaser at the first sale, is but the same principle applied to sheriffs’ sales which is applicable to the sales of goods by private persons.
    Nothing of this applies to the sale of land under execution. By the levy on real estate no title vests in the sheriff, nor can he take possession. He can maintain no action respecting it, but all the title, possession, and right of possession, continues in the debtor. By the mere act of knocking down the property to the bidder, no title passes to the bidder. When the sheriff executes the deed, no title passes from the sheriff, for he acquired none by the levy. The. title passes directly from the debtor to the purchaser by the sheriff’s act, as does a title pass from the vendor to the vendee by the act of an attorney in fact. The deed, when strictly considered, is the deed of the defendant, acting by the sheriff, as in case of a principal acting by his attorney. The sheriff cannot retain the land until the money is paid, for he has neither title nor possession to retain. He cannot make the second sale to convey the title which the first purchaser obtained by knocking the property down to him, for he obtained none by that act. All he can do is, to regard the contract entered into by the bidding and knocking down the property as an open executory contract, and, insisting on its fulfilment, proceed to enforce its execution by suit or action; or he may elect to dis-affirm it, and proceed to sell the property again, precisely as an individual may, who, having sold land, may go for a specific execution, or may resell at his election if the money is not paid ; but he cannot insist on the purchase as a subsisting contract, and resell as a disaffirmed contract: that involves a contradiction. Upon a rescinded contract, no action can be maintained j and on a subsisting contract, if the purchaser has to pay the price, he must be entitled to the thing purchased and for which that price is paid.
    Potter, on same side,
    Cited Jackson v. Catlin, 2 John. 248; Ennis v. Waller, 3 Biackf. 472.
   Mr. Justice Clayton

delivered the opinion of the court.

This suit is brought to test the liability of Clifton, on the following state of facts. A tract of land belonging to Grimball was sold under execution by the sheriff of Hinds county, at which Heard became the purchaser for the sum of $1600. On the day after the sale, Clifton wrote to the sheriff, informing him that Heard had transferred his bid to him, requesting that he might be put in the place of Heard, and promising in due time to make the necessary arrangement. The sheriff returned these facts, with the further fact that Clifton had failed to pay the money. A venditioni exponas afterwards issued, under which the land was again sold, when it brought only fifty dollars. The action is brought to recover the difference between the price at the first and at the second sale.

The decision mainly depends upon the legality and binding efficacy of the contract with Clifton. Had it been a transaction between private individuals, touching a private sale of property not under execution, there would seem to be no doubt of the validity of such agreement. But sales under execution stand on a different footing. The sheriff acts only as a minister of the law, in obedience to its mandates, and in execution of the authority which the mandate confers upon him over the property of the debtor. The law makes the sale, through the agency of the sheriff. Tate v. Greenlee, 4 Dev. 151; Watson on Sheriffs, 5 Law Lib. 136.

It is very manifest that the law did. not make this sale to Clifton. Its directions were not pursued. It would very much extend the authority of sheriffs to sanction a sale of this sort. So far as regards Clifton, it was a private arrangement. None of the requisitions of the statute were complied with. The duty of the sheriff is to sell publicly and for cash ; after such a sale, he has no power to substitute another purchaser upon credit. Such agreement created no privity betwefen Clifton and the plaintiff in execution, and therefore gave him no cause of action.

The judgment is affirmed.  