Freeman v. Husband , 77 Pa. 389 ( 1875 )

Mr. Justice Gordon

delivered the opinion of the court,

On the 4th day of April 1870, certain real estate of John Smith was exposed to sale by the sheriff of Philadelphia county, .upon a writ of levari facias, issued to March Term 1870, and the property was struck down to defendant on his bid of $13,000. The following were the terms under which the property was sold: “ Fifty dollars of the price, or sum at which the property shall be struck off, shall be paid to the sheriff at the time of sale, unless the purchase-money shall be less than that sum, in which, case only the purchase-money shall be paid. Otherwise the property will again be immediately put up and sold. The balance of the purchase-money must be paid to the sheriff, at his office, within ten days from the time of sale, without any demand being made by the sheriff therefor, otherwise the property may be sold again at the expense and risk of the person to whom it is struck off, who, in case of any deficiency at such resale, shall make good the same.”

The defendant paid the hand-money ($50) but no more. He was requested to comply with the terms of sale, but neglected so to do. The sheriff then made return that the premises remained unsold for the want of buyers. Afterwards, on the 19th of April 1870, an alias levari facias was issued, upon which the same premises were sold to David H. Hess for $12,150. The conditions were so altered at this latter sale as to require $500 to be paid in hand. This action was brought to recover the difference between the defendant’s bid at the first sale and the price subsequently obtained for the property. The court below entered judgment for the defendant upon a case stated, containing the facts as above set forth.

Tavo questions are presented for our solution. First. Can any one but the sheriff who sold the property maintain this action ?

Second. Did not the alteration in the terms of sale release the defendant from liability ?

We answer the first in the negative, on the authority of the cases of Adams v. Adams, 4 Watts 162, and Gaskill v. Morris, 7 W. & S. 32, in both of which it was held, that not only should the suit be brought in the name of the sheriff, but that it could be maintained by no other person. The counsel for the plaintiff contends that it might have been amended in the court below, by substituting the name of the sheriff as plaintiff, and that, therefore, we are to treat it as so amended. We will not say that this-might not have been done upon proper cause shown, but as the amendment, when made, would not have been merely technical, and of course, but substantial, involving the rights of a third party, we cannot treat it as if it were now part of the record.

The second question we answer affirmatively. The terms and conditions exhibited at a public sale, are in the nature of a contract with those who may choose to bid or buy at such sale.

In the case in hand, the defendant, by his act of bidding, and permitting the property to be struck down to him, agreed, 1st, to forfeit the $50 hand-money if he did not comply with the terms of sale. 2d. that upon a resale, he would pay the difference between his bid and what the property might bring upon such resale. Rut if these terms were materially altered upon the resale, he was thereby released; for he cannot be held to conditions that did not form part of his contract.

That the alteration of the terms of sale was material, and that it did affect the price of the property on the resale, is conceded in the case stated. It is therein set forth, “that Wm. R. Dickerson, Esq., was present and prevented from bidding on the house and lot in question, by reason of the notice by the sheriff that the purchaser would be required to pay the sum of $500 at the time of sale. He would have purchased said property at a price equal or nearly equal to that at which the defendant had bought.” It is manifest therefore that the responsibility of loss, if any such there is, rests with the sheriff, and not with the defendant.

The doctrine above enunciated is supported by the cases of Paul v. Shallcross, 2 Rawle 326, and Banes v. Gordon, 9 Barr 426. The judgment is affirmed.