Lamborn v. Moore , 6 H. & J. 422 ( 1825 )

Earle, 3.

delivered the opinion of the court. This is an action on the casein nature of a decei1,and is grounded on the facts alleged and provéd, that thelands of the plaintiff were sold by the defendant, as shériff of Harford county, under sundry writs of fieri facias, issued on judgments obtained against him by Buckler Bond, and bid in át a sum, greatly below their valué, by acértain fohh Watson, who, to prevent a sacrifice of his propérty, ánd gain time for the plaintiff, agreed with him to purchase the lands for his* benefit. That after the sale was over, the defendant agreed to give the plaintiff and Watson, until the Monday next following the sale, to raise the money and pay the. executions; that not regarding his agreement arid undertaking, but fraudulently intending to deceive and injure the plaintiff, he colluded with, advised and aided Vatson, to hold the property by virtue of his bid, that he and Watson might sell the same for a larger sum upon their own account, and for their own benefit, and share the profits between them; and that in execution of their fraudulent design, the defendant refused to receive the money for the executions offered to him by the plaintiff by the time agreed on, but claimed the property, and held the same for Watson by virtue of his bid, and afterwards returned the property sqM to Watson, and satisfied the executions.

The greater part of these facts were examined by thíá court, in deciding Lamborn and Watson at the last term! like this case it was m form an action, founded on a deceit: * but was clearly intended to recover damages for a fraud, in the nonper Form anee of What may perhaps be called a fair agreement between the parties. That agreement being á verbal one for the safe of land, was determined by the court to be within the statute of ffáuds, and by its operatioii, to be a Void contract/ and it Was 'decreed j that the attempt to recover for the fraud, subsequently conceived and practiced, in withholding an execution of the agreement/ was evasive of the statute, and could hot avail// Can this"actioir then, growing óüt of the same contract, be in law supported?

The defendant here Was not á contracting party .in the Agreement anterior to the sale, but he is charged with secretly Colluding with/ advising and aiding Watson, to hold the property by virtue of his bid, that they might sell the same for á larger sum on their own, account, and for theii? own benefit/ and share the profits between-them, and with retaining the .property sold to Watson, and satisfying the executions. This is the gist of the action, and is in substance thé sánie facts that formed the'ground work of the suit against Watson. Notwithstanding the fraud that supervened, the nonexechtioh of the agreement by him was pronounced not to be actionable/ and his Counsellor, how-fever reprehensible we think him, Cannot be exposed toi greater liabilities. To the adviser the same láw must be jneted as was meásured to the advised. They are in pari delicto, and a higher punishment ought hot to await the one than the other, áiid if the breach of Wat sorts contrae^ is unsusceptible of being enforced for oñé purpose, it should be so deemed for every purpose: Whatever abhorrence/ therefore, we may feel for the conciuct of Moore'/ as por* trayed in the record, we must decide, that the action against him is not supported.

There is one particular in which, this case niaf be said to differ.from that against Watson, although in our opinion it does not lead to a different result. Moore is chárgedí with violating his agreement, to give the plaintiff and Watson until the Monday following the sale to raise the money, and pay off the executions, and it was insisted.on the argument to be the foundation of this, suit But it evident iy cannot be so considered: .and from the complexion of the. case, is plainly an item of the deceptions conduct imputed to the defendant, as manifesting a disposition in him to aid Watson in defrauding the. plaintiff. If it was viewed, however, as a substantive ground of action, we cannot see how it could be made to support the plaintiff’s case. It is «otan undertaking to the plaintiff singly, but to him and Watson,■ and the latter at least was not for, exacting an ob - aervance of it.

We concur with Harford, county court in the instructions given to the jury, and affirm the judgment.

JUDGMENT AFEIKMED.