O'Neal v. Wilson , 21 Ala. 288 ( 1852 )

CHILTON, J.

— It will be very apparent, from tbe facts of this case, which I have drawn out at length, that tbe complainant below cannot have tbe releif prajmd by him.

In tbe first place, tbe sheriff bad no authority to sell a greater interest in the slave than O’Neal bad. He bad tbe possession and tbe right of possession until the' 1st day of March,-1850, the law day in tbe deed of trust. Instead, bow-ever, of selling the equity of O’Neal, he sold the entire property, declaring that he would apply the proceeds, first, to the satisfaction of the trust, and the overplus upon the execution. He had no power thus to put himself in the place of the trustee. The creditor who has execution against the mortgagor or maker of the trust deed, has the right, under the statute, to pay off the debts secured by the trust, and thus to be placed in the situation of, or substituted to the rights secured to, the beneficiaries under it. And in such event, the trustee would be compelled to execute the trust for him in the same manner, thus tacking, as it were, his execution debt to the trust deed. Baylor v. Scott, 2 Por. 315, 322. Such was not the course pursued in this case. The sheriff assumed the responsibility of closing the trust, which he had no power to do, and the sale by him passed nothing but the unexpired, term in the slave to which O’Neal was entitled, together with the equity of redemption. In other words, it transferred to the purchaser, Wilson, all the interest which O’Neal had in the slave. 8 Ala. 706; 5 Por. 182; 2 Ala. 314; 18 ib. 753, 758. It is clear, then, the sale did not divest the title of Johnson, the trustee.

Again, it is clear that Wilson purchased in his own Avrong, with a full knowledge of the trust, and after the sale had been forbidden by the attorney for the trustee. Having forbidden the sale, the agent of the trustee was under no obligation to make any response to the sheriff’s declaration as to the manner he intended to dispose of the proceeds. He read the trust deed, and forbid the sale. If, after this, the sheriff proceeded to sell, and Wilson to purchase, the entire property, they did so at their peril, and can claim no aid from a court of equity to relieve them from the consequences of their own folly and temerity. The doctrine, caveat emptor, applies to such sales; and although the court will sometimes interfere in peculiar cases, to prevent fraud, or to relieve against mistakes, this is not one of those cases.

The plaintiff below entirely failed to show, that he was misled by any act of either O’Neal or Johnson, the trustee; and if the declaration of the sheriff as to his intended application of the funds misled him, this was his misfortune in not understanding the powers and duties of the sheriff, and not the fault of O’Neal or Johnson. It is said, the common law court has set aside the sale made improperly by its officer. This, we apprehend, was done, upon the tender of the slave back, or offer to return her; and the court which cancels the sale, the money being in the hands of its executive officer, has doubtless ordered it to be refunded to the party who paid it, if it has been paid. We say, if it has been paid, for it is worthy of remark, that there is no direct allegation in the bill that it was paid, nor any proof of the fact. We can only arrive at it inferentially, from the charge, that O’Neal refused to permit the sheriff to apply it to the purposes of the trust.

The trustee, as we have shown, had a good cause of action, not only to recover the slave, but her hire from the time he became entitled to her under the trust deed. He is not in any wise estopped, by any conduct of his agent on the day of sale by the sheriff, from asserting that title, and there is no reason whatever shown for enjoining his suit, unless, indeed, the slave has been returned; and this would constitute no valid objection to its maintenance for the hire. Besides, the return is a good answer in the common law court to a judgment for the property. The suit was, therefore, improperly enjoined. Indeed, the whole case made by the record shows, that the complainant has come into court to be relieved against his own rashness, in buying an interest in property which the sheriff could not convey, and which he was positively forbidden to sell. There was no deception practiced upon him; no want of knowledge in regard to the facts; and if, reposing upon his own or the sheriff’s knowledge of the law, as to the power of the latter to sell as he did, Wilson ventured to purchase, he has no standing in a court of equity, and must take the consequences. Were courts of equity open for such complaints, there would be no end of applications to set aside improvident purchases, made, it may be, to speculate upon the chances of success. We do not say that such was the fact here; for it is but charitable to suppose Wilson was ignorant of the law, and for that reason made the purchase. While, however, we may indulge this supposition, to exonerate him from any intended violation of the rights of others, the law will not indulge the presumption to afford him relief.

Let the decree be reversed, and here rendered, dismissing tbe bill; and let tbe defendant in error be taxed witb tbe cost of tbis court and tbe court below.