McCartney v. King , 25 Ala. 681 ( 1854 )

GOLDTHWAITE, J.

The object of the bill is to enforce the vendor’s lien for the purchase money of land. The land was sold by John Bradley to William King, and part of the notes given for the purchase money assigned to the appellant, who, before filing his bill, obtained judgments at law upon them. Prom the pleading and evidence in the cause it appears, that the appellant sued out executions against Spence, as the administrator of the vendee,fKing, and had them levied on a number of slaves as the property of King’s estate. At the time the negroes were sold upon this levy by the coroner, Spence, who was the sheriff and administrator of Jno. C. Calhoun, as well as of King, gave notice that the title was in Calhoun, and that he would sue for them as his representative. David A. Calhoun, also, at the same time claimed the slaves, and gave notice that he would assert his claim to them. The coroner, who was indemnified- by the appellant, proceeded to sell, and they were bid off by the latter, who heard the notice given by Spence and Calhoun. The amount bid by the appellant being more than sufficient to pay one of the executions, he acknowledged satisfaction on the one, and entered a partial satisfaction as to the other. Spence then brought an action against him, and, as the representative of John C. Calhoun, recovered of him the value of the slaves, which he paid ; and David A. Calhoun, by a suit in chancery, compelled him to pay about $2,800, which was declared to be a lien in his favor on the slaves. The master reported an account, in which he has credited King’s estate with the whole amount bid for the slaves by the appellant, and reported the balance due. These facts are charged in a supplemental bill, and it is asked, that the satisfaction on the one execution and the partial satisfaction on the other be set aside, and that the appellant be allowed to enforce his lien for the whole amount of his notes upon the land. This prayer is predicated upon the entire failure of the title of the slaves bought by him, as evidenced by the recoveries of Spence and David A. Calhoun.

Upon these facts, the main inquiry is, whether a plaintiff, who has bought property under execution -sale, after indemnifying the sheriff, and with notice of the defect of title, can come into chancery, after the payment of a recovery against him by the true owner, and be relieved of his purchase.

The question as to the application of the doctrine of caveat emptor to sales made by the sheriff under execution, can scarcely bo regarded as an open one in this court, since our decisions applying the rule to sales made by an administrator under the order of the Orphans’ Court.—Perkins v. Winter, 7 Ala. 867; Worthington v. McRoberts, 9 ib. 297. There can be no difference, in principle, between such sales and one made by the sheriff in pursuance'of the law, under execution. Both are judicial sales ; and if the doctrine obtains in the ojie case, the same reasons would require its application in the other. Indeed, in Lampkin v. Crawford, 8 Ala. 153, where the suit was brought by the marshal against a purchaser to recover the amount bid.by the latter upon the sale of property under execution, we held, that the fact that the defendant in execution had no title to the property was no defence to the purchaser.

We do not, however, understand that the application of the rule to the general class of cases to which have referred is denied ; but it is insisted that it does not hold in cases where the sheriff is indemnified before making the sale. It may be true, that, in such a case, the sheriff becomes, in effect, the warrantor of the title, and his vendee may be entitled to the protection which the officer himself would have. But in the present case, the purchaser is the indemnitor ; and if it be conceded that, if a stranger had bought the property, he might invoke the protection of the bond of indemnity, that is very different from holding that the indemnitor — the party who directs the trespass to be committed — may indemnify himself for the consequence of his act, by a resort to the defendant in execution. If that was allowed, we should be working in a circle : the purchaser would be compelled to pay the amount of Ms bid, but he could recover the amount, if his title failed, by a resort to the bond of indemnity; and the ob-ligor in the bond could, in his turn, recover the amount of the defendant in execution, and thus the parties would be loft precisely where they started.

The true doctrine, we think, is this : the purchaser, where the sheriff is not indemnified, buys at his own risk, and if it should turn out that the defendant in execution has no title to the property, he is notwithstanding liable for the amount of his bid. This is on the ground of contract. The officer sells, and the purchaser buys (not the thing itself, but) the real or supposed right which the defendant in execution has to it; and the purchase operates precisely the same as if he had bargained for and obtained a quit-claim. If the purchaser pays the money, the officer is bound to apply it to the discharge of the execution, for the reason that, as we have said, he receives it for a supposed right which the defendant in execution has to the thing sold. The same principle which compels the purchaser to pay in such a case binds the officer to apply the amount paid to the execution. If the sheriff is indemnified, we cannot see that the character of the sale is changed as to the defendant in execution: be is in no way connected with tbe bond of indemnity ; and yet we arc called upon to make that act produce a different result as to him. If one was voluntarily to pay an execution against another, no recovery could be had against the debtor, without a ratification of the payment by him ; for the law does not allow a person to raise a debt against another without his consent; and still less could a party who stipulated simply for a quit-claim title call upon the vendor as a warrantor. Even if a payment voluntarily made by a third person was ratified by the debtor, the original debt would be extinguished, and the person making the payment stand as a creditor at large against the debtor. He might, in such case, be entitled to sue and recover of him the money, but he could call for nothing by substitution.—Roundtree v. Weaver, 8 Ala. 314.

From what we have said, it follows, that the amount of the bid made by the appellant for the slaves sold was properly credited by him on his executions, and that neither the failure of the title, nor the action of the defendant in execution in insisting on the satisfaction, would authorize a court of chancery to set it aside.

It is urged, however, on the part of the appellant, that the peculiar situation of the parties to each other is shown by the record to be such as to require the satisfaction to be,set aside, and the lien enforced for the whole amount of the purchase money. In other words, that the record discloses that Spence was the administrator of John C. Calhoun, and also the administrator de bonis non of King ; that the former had, while he was the representative of King, purchased the slaves at his own sale, under such circumstances as to authorize a court of chancery to set it aside; that Spence, representing both estates, had the power to elect whether he would confirm the voidable purchase made by Calhoun, thus rendering the title good in himself as the representative of that estate, or disaffirm it, and treat it as the property of King’s estate ; and it is insisted, that in such a case a court of equity will control the election, so as to do justice to the creditors of each estate. The difficulty which meets the appellant in this aspect of the case, is, that whether the slaves be regarded as the property of the estate of either Calhoun or King is entirely immaterial, so far as satisfaction to the amount of his bid is concerned. If the purchaser is to take the risk, and is bound to pay the money, although the property sold does not belong to the defendant in execution, then, if the creditor becomes the purchaser, his debt is reduced by the amount of his bid, and pro tanto he is no longer a creditor, and cannot as such claim the assistance of the court. If a stranger had bought the slaves, we have seen that he could not resist the payment of the purchase money ; and that the plaintiff in execution was the purchaser cannot affect the principle, as he would be entitled to no peculiar rights on that account. There may have been circumstances in the conduct of the representative of King, which induced the appellant to believe that the slaves were the property of that estate ; but these circumstances, as was held by this court in McLane v. Spence, 11 Ala. 112, were far from being conclusive. If, indeed, Spence, being the representative of the estate of Calhoun, had stood by in silence, and permitted the slaves to be sold under an execution against himself as the administrator of King, that, in our opinion, would have been an election on his part to treat the property as belonging to that estate; but this is not the case : Spence is found at the sale asserting the title of Calhoun, — electing to treat the property as belonging to that estate, and giving notice to the appellant, before he made the purchase, that he would so consider it; and if, after receiving this warning, he chose to buy, he is a purchaser with notice, and must abide the consequences against which he was warned. We know of no principle, under such circumstances, upon which he would be entitled to relief.

Decree affirmed, with costs of this court against the appellant.