Fox v. Cash

The opinion of this court was delivered by

Coulter, J.

The clerk to the commissioners is not forbidden by the law to be a purchaser of a tract of land sold at public sale by the commissioners for arrears of taxes. Hor is it so opposed to the policy of the law as to make it iniquitous and void. The sale is open to all, except the commissioners themselves, who are the vendors, and cannot therefore both sell and buy. The clerk is merely the scrivener or ministerial agent of the commissioners. He is, it is true, employed or appointed by the commissioners subject to their directions and instructions, and without any independent authority or control over such sales; has no power in ordering, arresting, or continuing them, or in directing to whom the lands shall be stricken down. Everything he does in relation to them must necessarily be in subservience to the directions of .the commissioners. And if he was the highest and best bidder at the sale, and the commissioners, who are sworn public officers, made him a deed in pursuance of the purchase, it is opposed by no statutory prohibition, or any rule of public policy that has been recognised by our courts.

If the clerk of the commissioners had been the purchaser himself, and received a deed from the commissioners, and afterwards sold the land, he would undoubtedly be entitled to recover the purchase-money.

But in this case he was not the purchaser himself, but interested to the extent of one moiety, in the tract purchased by Cash, the defendant.

Cash and Miller Fox, who was the clerk, on the day of sale entered into a written agreement, that Cash should buy at the sale a tract, in the name of Curry, for their mutual and joint benefit, each to pay an equal proportion of the purchase-money and expenses.

Cash made the purchase, and received a deed from the commissioners in 1834.

Afterwards an ejectment was brought against Cash for the land, by the former owner, during the pendency of which, he called on Fox, by letter, to assist in conducting the suit. Before it was finally tried, Cash compromised and made a deed, himself and wife, to the agent of the plaintiff, in that suit, who was the former owner, on the 29th October, 1840. Some time before that, as alleged (and there is no evidence to the contrary), Fox, who had committed the management to Cash, left the neighbourhood, and did not know of the sale by Cash until shortly before this suit was brought on the 13th April, 1847.

The court below was of opinion that the contract was executory, and against the policy of the law, and that, therefore, Fox could not recover his share of the purchase-money.

But the contract was executed by the purchase at the commissioners’ sale, and by the deed made to Cash in pursuance thereof. All that was against the policy of the law, even in the opinion of the court below, was fully executed and accomplished by the deed from the commissioners to Cash. From thenceforth Cash was the trustee of one moiety for Fox.

For even if public policy made the purchase void, as against the county, or the former owner; it would nevertheless be good as between Cash and Fox. It would be iniquitous to allow Cash to pocket the whole proceeds, when Fox had paid half the consideration and expenses.

In Lestapies v. Ingraham, 5 Barr, 81, the Chief Justice says, “ True it is that an illegal contract will not he executed, but when it has been executed by tbe parties themselves, and tbe illegal object of it has been accomplished, the money or thing which was the product of it may be a legal consideration among themselves for a promise, either express or implied; and the court will not unravel the transaction to discover its origin.” The case of Fackney v. Reynous, 4 Burr. 2069, cited by the Chief Justice in the above case, which was a bond given by one of two stockjobbers, for a difference in amount paid in a stock-jobbing transaction, prohibited by act of Parliament, is directly in point. It was held that tbe bond was good. But we are of opinion that there was nothing illegal or against tbe policy of tbe law in tbe transaction, and that Fox has a lawful and just claim against Cash for a moiety of the money he received for the land, together with interest.

The statute of limitations is not a bar to the plaintiff’s action. Fox was not bound to know tbe precise time when Cash sold tbe land. It was tbe duty of Cash to give him notice. Cash was, in fact, the trustee, and Fox the cestui que trust of one moiety of the money for which the land was sold, and which is claimed in this action.

Judgment reversed, and venire de novo awarded.