Andrews v. . Pritchett . , 72 N.C. 135 ( 1875 )

Reads, J.

It is clearly the duty of a sheriff to conduct his sales in a prudent and just manner, so as to realize a fair price for the property sold. And if he does otherwise the sale is voidable. Yoidable by whom ? The general answer is, voidable by any person injured thereby: — by the defendant in the execution ; by the plaintiff in the execution ; by any creditor of the execution debtor. But it is equally clear, that no matter how irregular soever the sale may have been, no one can complain of it, who was consenting to it. Therefore, as against the defendant in the execution, the sale in question was valid, because he was not only consenting to it, but connived 5it. And so far as we know, it was valid also as against the plaintiff in the execution; for he does not complain, and as it may bé supposed, received the money realized in satisfaction of his execution. But the plaintiff in this aetion was creditor of the defendant in the execution, and had the right to have his claim satisfied out of the defendant’s property, which is alleged to have been sacrificed. And although the sale was valid as against every one else, yet he says that he is injured and has the right to avoid the sale. And his legal inference is right, if the sale was irregular.

The first question then is, was the sale irregular?

There was a tract of land in the country estimated at the value of from $700 to $1,200 and several lots in town valued at from $500 to $700. And the defendant in the execution had the right of a homestead of a $1,000 value in the whole. It was the duty of the sheriff to have the homestead laid off and sell the excess. But instead of that, he, at the instance of the defendant in the execution, sold the whole an masse, with the lien of the homestead upon the whole; so that no one could know where the homestead would belaid off or what he would get if he bought at the sale. The consequence was that the land was bid off by the defendant in this action, who is a son of the defendant in the execution, at the price of $200.

It does not require the intervention of a jury to stamp this transaction with fraud. The-facts being found, or admitted as stated, the invalidity of the saléis a legal inference.

Before the adoption of the Code, the remedy would have been administered either in the Law or Equity Courts, according to'direumstanees ; but now, this action embraces both remedies. It has been treated however as if it were an action of Ejectment at law ; and the effect of the judgment below is to sustain the sale as valid ; whereas it is clearly voidable. And yet a judgment the other way would have been equally erroneous, for it would have taken the land away from the defendant and given it to the plaintiff, without allowing the defendant the $200 which he paid for the land, and for any improvements which he may have made.

We must therefore declare that the judgment below is erroneous ; and remand the case, with the suggestion, that the rights of the parties to the transaction, and to this suit, are, that the debtor defendant in the execution is entitled to his homestead, to be laid off to him, if it has not already been done; that this defendant, the purchaser at the execution sale, holds the excess in trust, first, by a re-sale to re-emburse himself the price which he paid and any other charges for better-ments; and that this plaintiff is entitled to the excess of the value of the laud, to the amount of this debt, if the excess shall be so much.

We suppose that the pleadings can be so amended below, and proceedings so regulated as to administer the rights of all the parties. To this end, there must be a venire de novo and the cause remanded, with this opinion certified.

Pee CuRiAM. Venire de novo.