Menges against Oyster, 4 Watts & Serg. 20

The opinion of the Court was delivered by Gibson, C. J. — It is an error to suppose that judicial equity is as broad as natural justice. Duties of imperfect obligation are too indeterminate in their principles and relations to be subject to human cognizance; and for that reason it seems that more effect was given to a naked moral obligation in Moody v.

Vandyke, (4 Binn. 41), than any principle or precedent could be found to warrant. -A purchaser at the sale of a testator’s land by administrators with the will annexed, who had no authority at that time to execute a testamentary power, was allowed to retain the possession, though the sale was void, till what he had paid was refunded; and the Chief Justice put the case of a voluntary sale by a friend without colour of authority, as an apposite one, inducing the same equitable right to reimbursement.

Yet what is such a case but that of a man who has, for the best of motives, attempted to make himself the creditor of another by paying his debts without his assent, which is put to illustrate the necessity of a precedent request as the foundation of an assumpsit for money paid to another’s use ? It is not to be denied that such payment would be a consideration for an express promise; but as it would not raise a promise by 'implication of law, it is plain that it wants that legal sanction which is necessary to make it a matter of adjudication even for purposes of defence.

It would be fallacious to suppose that it is insufficient for the implication of a promise only, because an action is usually founded on something more solid than an equity. Assumpsit, though in form an action on a promise, gives effect to the same principles that ’are administered through a bill in.equity; and its sufficiency as a remedy has almost entirely withdrawn parol contracts from the jurisdiction of chancery. The point, however, seems to have been taken for granted, rather than adjudicated, in Moody v. Vandyke ; but in Walker v.

Quigg, (6 Watts 88), it was fully considered, and a different conclusion drawn. It was ruled that the children of a testator were not bound to reimburse purchase money applied to their fathers’ debts by an executor who had sold the land under what was erroneously thought to be a testamentary power, because the payment was in fact a voluntary one. In the case before us, the plaintiffs have a legal title; and if payment of their fathers’ debts does not give the defendant an equity to control it, what else is there in the proofs ?

It is said that the father encouraged him to bid by concealing the fact that the part of the land in contest could not pass by tne sale because it was not within the county, as well as by suffering his own son to bid; and that he confirmed the sale by having the proceeds applied to the liens, as well as by directing the defendant to take possession when the sheriff’s deed was acknowledged. What colour is there for the imputation of concealment ?

The very advertisement of sale, to say nothing of the mortgage, scire facias and levari, described the land as being in Northumberland and Lycoming counties; and the bidders were bound to take notice of it. Silence is not fraudulent where it is the offspring of ignorance; and it is, besides, not pretended that any one was misled by it. The misconception was not of the fact but of its effect; and here too-the parties met on terms of the most perfect equality, for they were both profoundly ignorant of the extent of the sheriff’s authority.

Akin to the mortgagor’s, silence, but still less plausible in its supposed consequences, is his son’s bidding by his direction, which could not prejudice his right because the sale was a valid one as to a part of the land, and a debtor may lawfully bid to preserve his property from going below its value. His position is one of compulsion, not of choice; and his bid is not that of a puffer, because it is not thrown in as a provocative. In Bramley v.

Alt, (3 Ves. 620), Lord Alvanley was of opinion that the owner may appoint a bidder to prevent a sacrifice of his property, even at a voluntary sale; for what is that, said he, but to set it up at a particular price? Lord Rosslyn doubted, in Connolly v. Parsons, (3 Ves. 625, note), whether a purchaser can be defrauded, in any case, by the apparent eagerness of competitors, and professed great difficulty in being able to compass the reasoning that a bidder does not always follow his own judgment; but in Smith v.

Clark, (12 Ves. 483), Sir William Grant said he was unwilling to go that length, or support a sale at which bidders were employed to screw up the price by the excitement of competition. Yet he, too, admitted the legality of an owner’s bid as a defensive precaution, notwithstanding the opinion of Lord Mansfield in Bexwell v. Christie, (Cowp. 396), that the owner may not bid on his own property, even to prevent it from being sacrificed.

Those cases are stronger than this, inasmuch as the mortgagor had not a right to have the premises put up at his own price; and a right to bid at an involuntary sale is peculiarly necessary to prevent the success of a combination, such as there was in Smull v. Jones, (1 Watts & Serg. 128), to depress the price. The other facts are posterior to the sale, and too inconsequential for a defence. In procuring an appropriation of the proceeds and an entry of satisfaction, the debtor did no more, as he had done in directing his son to bid, than exercise a legal right.

In contemplation of law, the sheriff sold no more than was subject to his execution; and if he professed to sell anything else, it was the business of the purchaser to move the court to set the sale aside. He did not move, and the money was brought into court for distribution. What was the debtor to do ? He had no choice but to treat the sale as an unexceptionable one; and he did no more. The same thing may be said of his direction to take possession. It was a ratification of the sale; but without a consideration for it, what is the worth of such a ratification ?

It is not pretended that it was a benefit to the debtor or a prejudice to the purchaser. Neither singly nor collectively did these things furnish a defence; and the direction to the contrary was erroneous. Judgment reversed, and venire de novo awarded.