Ennis v. Waller, 3 Blackf. 472

Stevens, J. Waller, as sheriff, &c. declared against Ennis in an action of assumpsit. The declaration originally contained four counts, but the third and fourth counts are not now before the Court, having been finally disposed of in the Court below on demurrer.

The allegations in the first two counts are in substance as follows: — That Waller, the plaintiff, was sheriff &c.; that on the 5th day of October, 1831, a writ of venditioni exponas issued, &c. directed to him as such sheriff, commanding him to sell certain lands, &c. described and set out in the writ, which lands, it was recited .in the writ, had been levied on by a writ offieri facias to satisfy a judgment in the Circuit Court of the county of Martin, in favour of Elizabeth Shelmire against Frederick Sholts and others, for the sum of 756 dollars and 41 cents debt and 23 dollars and 21 cents costs; that said writ of venditioni exponas duly came to his hands, and in pursuance of its commands he legally sold said lands under said writ, and that the said Ennis, the defendant, became the purchaser of part of those lands, that is, a certain quarter

section of land which is described by its numbers, &c., for the sum of 350 dollars; that he then and there, with the knowledge and consent of Ennis, endorsed on said writ that he had sold the said quarter

section of land to him the said Ennis, for the sum of 350 dollars; and that he shortly afterwards made, executed, and tendered to him the said Ennis, the proper and legal conveyance, but he refused to take it, and also refused to pay the purchase-money, &c. Ennis, the defendant, pleaded three several pleas, — 1st, J\ronassumpsit; and secondly and thirdly, special pleas in bar. The special pleas were demurred to and the demurrers sustained by the Court; upon the plea of non-assumpsit, issue was joined, a jury trial had, and a verdict and judgment rendered for the plaintiff.

The whole of the evidence given by the plaintiff to the jury, is spread upon the record by a bill of exceptions; by which it appears that no evidence went to the jury of any judgment, record, or proceeding, anterior to the writ of venditioni exponas. The writ of venditioni exponas and the proceedings of the sheriff on that writ, constitute the whole of the evidence given.

It appears also by a bill of exceptions, that the defendant asked the Court to instruct the jury that the contract and sale were within the statute of frauds, being a sale of lands; and that unless the agreement or some memorandum thereof was in writing, the action could not be sustained. He also asked the Court to further instruct the jury that the plaintiff could not recover unless he produced the record, or legal evidence of the record, of the judgment and proceedings on which the writ under which he claimed is bottomed. Both of these instructions the Court refused.

Yarious other exceptions and objections appear of record, and several other weighty points are urged upon this Court for consideration, but they have not been sufficiently examined to decide upon them, such decision being considered unnecessary in this case. ‘ This opinion is confined to the objections arising out of what is already above stated. The first question is, Were the demurrers to the defendant’s pleas correctly sustained? The pleas are, obviously, insufficient, and the demurrers to them would be well taken, if the plaintiff had a sufficient declaration.

His declaration however is radically defective, and therefore he cannot com plain of the insufficiency of the pleas: although the pleas may be a nullity, yet the plaintiffis not entitled to a judgment, and no default of the defendant in his pleadings can enable him to recover; hence the Court erred in sustaining the demurrers. The plaintiff claims to recover by virtue of an official sale made by him as sheriff, &c. under a writ of venditioni exponas, and if those proceedings do not vest in him a legal cause of action, he must go out of Court.

Now this writ of venditioni exponas, as well as all the proceedings of the sheriff under it, are null and void, and give no legal cause of action, unless there were remaining of record, unpaid, unreversed, and in full force, just such a judgment, and such proceedings as are recited in said writ; and before the plaintiff can recover, he must show upon the face of his declaration, by special and substantive averments, the existence of these facts. Ennis is a stranger to the judgment and proceedings, and is not presumed to be cognizant in any way of them, and has a right to traverse the facts.

Again, the plaintiff should have shown and alleged in his declaration, the substance, tenor, and effect, of the return he made as sheriff to the writ on which he avers he made his sale. His right to recover the purchase-money in his own name, depends to a great extent upon that return.

The defendant, Ennis, bid off the land, but refused to pay the money, and, under that state of facts, the sheriff was not bound to make himself liable for the money; he might, if he chose so to do, have returned that the property remained on hand unsold for want of buyers; and if he did so return, he has no cause of action or demand against the purchaser for the purchase-money. He avers that he did, “with the knowledge and consent of the defendant, endorse on the writ that he had sold said quarter

section of land to him for the sum of 350 dollars;” but he does not say that he made any such return. Under the circumstances of the case, he could only make one of two returns. He either returned that the property remained on hand unsold for want of buyers, or that he had made the sum of 350 dollars by the sale of said land to the defendant Ennis. Now which did he do? It is material to know; but his declaration is silent. This sale was made by the sheriff in the month of November, 1831, after the repeal of the 7th

section of the act of the 20th of January, 1826, entitled

an act amendatory of the law, &c. and before the passage of the act of the 2d of February, 1833, amending the act subjecting real and personal estate to execution; and therefore it must be governed by general principles, without the aid of those enactments. .It may however be remarked, that the case is not brought within either the letter or meaning of either of those enactments, and could not be helped out by them, were they in force.

The next question is, Should the Court have instructed the jury that the plaintiff could not legally recover, unless he produced the record, or legal evidence of the record, of the judgment and proceedings on which the writ of venditioni exiponas was bottomed? This is determined in the affirmative in that part of this opinion which relates to the allegation of the same facts in the declaration. Allegations and proofs must always agree.

If it were material to aver those facts, it was also material to prove them; and if they ought to have been proved, they should have first been stated, in a traversable form and manner, in the declaration: the Court, in refusing this instruction, committed again, in part, the same error it had committed in sustaining the demurrers to the pleas. The next and last .question is, Should the Court have instructed the jury that the sales of a sheriff by him made as sheriff, under a writ of execution founded upon a judicial judgment of a Circuit Court, are within the statute of frauds?

This is a question about which there may, perhaps, be some diversity of opinions. Lord Hardwiclce, in the case of The Attorney General v. Day, 1 Ves. sen. 218, said that a judicial sale before a master in chancery was not within the statute of frauds; but the case in which he made the remark is very obscurely reported, and it would seem rather to have been a consent of parties made in open Court, entered upon the record and confirmed by the Court. It is also laid down in general terms, by several law writers, that judicial sales before a master in chancery arc not within the statute of frauds.

These dicta, it is found, are all bottomed on the dictum of Lord Hardmcke; but neither his lordship, nor any of his copiers, has favoured uS with any satisfactory reason why it is so; and indeed it is not easy to comprehend the reason. It cannot be because they are sales at auction, for it is settled without a dissenting dictum, that sales at auction are as much within the statute as any other sales.

And in the sale of either goods and chattels or lands, it is now well settled that the auctioneer is an agent for both the vendor and vendee, and that his memorandum in writing of the bargain and sale, will satisfy the statute, if it contain a full and sufficient contract and is signed by the auctioneer; that is, if it contain the parties’ names, a full and sufficient description of the land, commodity, or thing sold, the price given, and the time and terms of payment. Simon v. Motivos, 3 Burr. Rep. 1921.—1 Bl. Rep. 599.—Hinde v. Whitehouse, 7 East, 558.—Heyman v. Neale, 2 Campb.

Rep. 337.—1 Dane’s Dig. 241.—Clason v. Bailey, 14 Johns. R. 484.—White v. Proctor, 4 Taunt. 209.—Simonds v. Catlin, 2 Caines’ Rep. 61.—Sugd. on Vend. 57-64. In all sales at auction of either lands or goods, the person holding the auction describes the land, commodity, or thing offered for sale, the terms and time of payment, and the bidder consummates the contract by bidding the price he will pay; which added to the terms and propositions, of sale, and signed by the auctioneer, makes a contract in writing signed by the agent of both parties, and satisfies the statute. Catlin v. Jackson, 8 Johns. Rep. 520, 550 .

In South-Carolina, in the case of Jenkins v. Hogg, 2 Const. Rep. 821, it was decided, that a commissioner’s sale of land under an order of a Court of chancery, was within the statute of frauds, but that the commissioner was the agent of both parties, and his entry in the sale-book was a sufficient memorandum in writing to satisfy the statute, if it contained a sufficiency and was signed by the commissioner.

In Kentucky, a sale of lands by the trustees of a town at auction was decided to be within the statute of frauds, and that the trustees were the agents of both parties, but that their entry óf sale in their sale-book did not satisfy the statute, not being signed by them. Thomas v. Trustees, &c. 3 Marsh. 298. In Nezv-IIampshire, in the case of Sherburne et al. v. Shaw, 1 N. Hamp.

Rep. 157, it is decided that the sale of lands at auction are within the statute, and that the memorandum, sale-hook, &c. of the auctioneer, must contain a full, ample, and complete description of the lands sold, names of the parties, price, terms of payment, &c. or it will not satisfy the statute.

It is, perhaps, useless to further multiply authorities; it is undoubtedly clearly settled, both by reason and judicial decision, that sales of land at auction are within the statute of frauds: and it may, without fear of controversy, be said, that the better reason, and a large majority of adjudicated cases, fairly establish that sheriffs’ sales under writs of execution are also within the statute; that the sheriff is the agent of both parties; and that his return to his writ of the levy, sale, &c. if sufficiently full and complete, and signed by him, will satisfy the statute.

In the state of Jiew-York, in the case of Simonds v. Catlin, 2 Caines’ Rep. 61, Judge Kent, who delivered the opinion of the Court, says, that there is nothing in either the form, substance, or nature of sheriffs’ sales, to protect them from the introduction of fraud and perjury, any more than there is in other sales at auction; and that there is no reason why they should not be within the statute, as well as other sales at auction.

He then adds that they are within the statute, but that the sheriff’s return in writing on his execution, of the levy, sale, &c. is sufficient to satisfy the statute, provided such return is signed by the sheriff, and contains with certainty the parties’ names, the amount hid, the terms and time of payment, and a sufficient description of the lands as to metes, bounds, where situate and lying, number or supposed number of acres, &c. In the case of Jackson v. Catlin, 2 Johns. R. 248, this opinion of Judge Kent's is reviewed and fully sanctioned; and, again, in the case of Catlin v. Jackson, 8 Johns.

Rep. 520, it is again reviewed and affirmed. In the city of Baltimore, in 1824, in the Court of Appeals of Maryland, it was unanimously decided by a full Court, in an opinion delivered by the chief justice of the state, after .the most profound and elaborate arguments by Messrs. Wirt and Harper on one side, and Messrs. Taney and Magruder on the other, that a sheriff’s sale of land was within the statute of frauds, but that a proper return of the sheriff in writing to his writ, would satisfy the statute. Barney v. Patterson's Lessee, 6 Har. & J. 182-205.

It was also decided in the same Court, in the case of Boring v. Lemmon, 5 Har. & J. 223, that in sales of land by a sheriff on execution, the sale, shei'iff’s return, and the payment of the purchase-money, pass the legal estate and vest it in the purchaser; and that deeds are taken out of abundant caution to multiply the evidence of the vendee’s title, and not, as is generally supposed, to vest the legal estate in the purchaser.

In conclusion it is only necessary to add, that after the most patient and careful examination of the statute and the various decisions under it, no reasonable doubt is left respecting the point in controversy. Statutes of frauds and perjuries are enacted for the peace and repose of society, to protect men from hasty and inconsiderate engagements, and against any misconstruction of their words by witnesses who might misunderstand? or who might be in the employment and under the influence of the party wishing to avail himself of such an engagement.

Upwards of one hundred and fifty years have elapsed since the first statute was passed in England, and every year from that time down to the present day, has added new and convincing proof of the salutary effects and beneficial influence’ of such laws upon the transactions of men, and no attempt should ever be made to circumscribe their due and legal operation by strict and illiberal judicial constructions.

Sheriffs’ sales have nothing in their nature, form, or manner of proceeding, to protect them from errors, misunderstandings, frauds, or perjury, more than other public sales have; therefore they are within the mischiefs intended to be prevented by the statute, and consequently must be within the statute. The Court should have given the instruction asked. If the auctioneer himself bring the suit, his memorandum of the sale is not sufficient to take the case out of the statute, according to the cases of Wright v. Dannah, 2 Campb. 203, and Farebrother v. Simmons, 5 Barn. & Ald. 333.

The language of the Chief Justice, in the case last cited, is:— “In general, an auctioneer may he considered as the agent and witness of both parties. But the difficulty arises, in this case, from the auctioneer suing as one of the contracting parties. The case of Wright v. Dannah, seems to me to be in point, and fortifies the conclusion at which I have arrived, viz. that the agent contemplated-by the legislature, who is to hind a defendant by his signature, must be Some third person, and not the other contracting party upon the record.” The Court of K.

B. very recently (in 1833) referred to those cases, hut gave no opinion as to their correctness. The case in which they were mentioned was this: — An auctioneer sued for the price of the goods sold by him; and the memorandum of the sale which he relied on, was made at the sale- by his clerk. Verdict for the plaintiff, and a rule for leave to move for a nonsuit. Per Den-man, C. J. — “I think this ease is distinguishable from Wright v. Dannah, 2 Campb. 203, and Farebrother v.

Simmons, 5 Barn. & Ald. 333 ; and it appears to me that tho clerk was not acting merely as an automaton, hut as a person known to all engaged in tho sale, and employed by any who told him to put down his name. 'Without, .therefore, interfering with the cases that have been cited, I think the rule must be discharged.” The other judges expressed similar opinions. Bird v. Boulter, 4 Barn. & Adolp. 443.