Foulk v. M'Farlane , 1 Watts & Serg. 297 ( 1841 )

The opinion of the Court was delivered by

Sergeant, J.

The appellant contends that the first sheriff’s sale, though effected by the collusion of the purchaser with the defendant, was only voidable and not absolutely null and void, and that Johnston Moore, having elected as judgment creditor, to receive his proportion of the proceeds of sale, is thereby estopped from treating that sale as void, and proceeding against the land in the hands of the purchaser.

Whether the sale is to be termed absolutely null and void to all intents and purposes, or only void as respects Moore, in case he determines so to treat it, can be of little importance in the ascertainment of the rights of the parties. In either case, it ceases to be an obstacle in his way. The real question is, whether he has, by the receipt of the money, precluded himself from asserting his claim against the land. It must be admitted, that had Moore been in any way connected with the alleged fraud, it would have barred him. That, however, is not pretended: he received the money under an appropriation by law to his use, innocently, and even ignorantly of the transaction, so far as appears. There could be no mala fides in his thus receiving the money. He never could be compelled to refund it. It was awarded to him by the acts of others, over which he exercised no control. I do not think, therefore, his receiving the money, under these circumstances, can be considered as an election, or set up as an estoppel against following the land into the hands of a fraudulent vendee for the purpose of realizing the balances due to him, though, as in Stroble v. Smith, (8 Watts 280) it might cure irregularity in the proceedings where there is no fraud. The fraudulent vendee gains no title to the land by the sale, nor interest in it, notwithstanding an innocent creditor may, by that very sale, obtain a good title to the money. It shall be a good sale as to the creditor, to entitle him to receive the money, and yet no sale as to the fraudulent vendee, to enable him to shelter the land against pursuit. Nor would the policy of the law, which abhors fraud, be promoted by permitting such a defence to the purchaser. All the avenues that facilitate the detection and overthrow of fraud, should be kept open and free from the interposition of bars and estoppels. The doctrine in Gilbert v. Hoffman, (2 Watts 66) goes to the full extent of the present case, in deciding, that a sale effected by actual fraud is as no sale, and can produce no legal effect on innocent persons.

Judgment affirmed.