Reed and Others v. Carter, 3 Blackf. 376

Blackford, J. This was a bill in chancery filed by Daniel Carter against James Reed, Santuel S. Lansdale, Jesse Shields, and Jonathan Keller. The bill states, among other things, that a tract of land belonging to the complainant, had been fraudulently sold on an execution against him, and purchased by Reed and Lansdale, two of the defendants. ' The object of the bill was to set aside the sale as fraudulent and void. The material facts are as follows; — Shields was the sheriff of the county, and Keller was his deputy.

A fieri facias against the complainant had been placed in the hands of a previous sheriff, had been levied on the tract of land now in question, and had been returned with an endorsement, that the land had not been sold for want of time. A venditioni exponas was after-wards issued, and Keller, as deputy sheriff, sold the land to Reed and Lansdale for the sum of 351 dollars and 25 cents. The balance due on the execution, at the lime of the sale, was only about 20 dollars.

A short time before the sale, the complainant, being about to set out for New-Orleans, bad a conversation with Keller respecting the execution, and had some reason to suppose, from Keller's language, that the sale would be post.poned until after his return. Immediately after the complainant’s departure for New-Orleans, the sale complained of took place. The tract of land sold is situated on the Ohio river, has a large improvement on it at the upper end, and is very valuable. It contains 100 acres, and is worth from 1,000 to 2,000 dollars.

Four or five acres might have been conveniently taken from the upper end of the tract, and could have been sold for more than sufficient to pay the small balance due. on the execution. No part of the purchase-money has been received by the complainant; and the whole of it, as is said, is in the hands of the clerk of the Circuit Court.

The decree of the Circuit Court is, that the sale be set aside; that the sheriff be enjoined from perfecting the title to the purchasers; that the clerk pay to the purchasers the purchase-money deposited with him; and that the complainant recover his costs against the defendants, Reed and Lonsdale. This Court had an opportunity, at the November term, 1825, to examine the facts which are now presented to the Court, for the second time, by the same parties.

It was not proper, on that occasion, to decide on the merits of the controversy; but the Court intimated an opinion, that the sheriff’s sale could not be sustained in a Court of chancery . That opinion is confirmed by an examination of the record now before us. The sheriff had no right to sell a tract of land, containing 100 acres and worth between 1,000 and 2,000 dollars, merely to raise the trifling sum of 20 dollars; when the sale of four or five acres alone, which might with propriety have been separated from the tract, would have produced the amount due.

The rule for the sheriff, in these cases, is correctly stated by the Court of chancery of New-York. The Chancellor, in a late case there, says, that “the proposition is not to be disputed, that a sheriff ought not to sell, at one time, more of the defendant’s property than a sound judgment would dictate to be sufficient to satisfy the demand, provided the part selected can be conveniently and reasonably detached from the residue ef the property, and sold separately.” Tiernan v. Wilson, 6 Johns. Ch. Rep. 411. There is a still more recent decision, by the Supreme Court of JVew-York, establishing the same doctrine.

In the latter case, an estate, worth 10,000 dollars, was sold by the sheriff to satisfy a debt of 100 dollars; and it appeared that a small part of the property might have been separately sold for a sufficient sum to satisfy the execution. The Court did not hesitate, though no express fraud was proved, to set aside the sale. Groff v. Jones, 6 Wend. 522. Were Courts of justice to countenance such sales, as the one presented by the record before us, the greatest oppression and injustice would be the necessary consequence. R. Crawford and H. H. Moore, for the plaintiffs. C. Dewey, for the defendant.

The sheriff, in this case, in selling 100 acres of valuable land to raise the small sum which he was authorised to collect, committed a breach of duty; his conduct was a fraud on the complainant; and the sale must be set aside. We do not discover, however, any thing in the record which authorises a decree against the defendants, Reed and Lansdale, for the costs of suit. No particular acts of fraud appear to have been committed by either of them.

That part of the decree, therefore, which sets aside the sale, and enjoins the sheriff from perfecting the title to Reed and Lansdale, and that part also, which requires the clerk to pay the purchase-money in his hands to the purchasers, — must be affirmed; but that part of the decree which requires the defendants, Reed and Lansdale, to pay costs to the complainant, must be reversed. Per Curiam. That part of the decree which sets aside the sale, and requires the clerk to pay, &c. is affirmed: the other

part is reversed. Cause remanded, &c. Reed v. Carter, Vol. 1, of these Rep. 410.