Hare v. Bedell

Mr. Justice Sterrett

delivered the opinion of the court,

It is very clear that a defaulting purchaser at sheriff’s sale is not liable to respond in damages for loss on re-sale of the property, if it appears that under the first sale he would have acquired a more valuable title than that which passed to the purchaser at the last sale, or that the terms of the first sale were more advantageous to the purchaser than those of the re-sale. The obvious reason of this is,' that the inferior quality of title, or the less advantageous terms of sale, would naturally effect a reduction of price, and we would be left without any reliable standard by which to measure the loss sustained by the refusal of the purchaser at the first sale to make good his bid.

The main ground of defence in this case was, that the title sold and conveyed at the last sale was far inferior in quality to that which would have passed to the defendant by the first sale, if he had paid his bid and received a deed. The first sale was by virtue of an execution based on the Caughey judgment against Joel Bedell, entered September 25th 1874, prior to the conveyance of the property by the defendant in that judgment to his wife. It is therefore clear that if the sale had been consummated, it would have extinguished the title of Mrs. Bedell, as well as the lien of all judgments against her. husband, entered prior to the date of his conveyance to her. If the last sale was made solely on the "Whigham judgment, entered December ,14th 1874, after the conveyance to Mrs. Bedell, it would pass to the purchaser only the right to contest her title, under the deed from her husband, on the ground of fraud, and would not discharge the lien of any judgments entered against him prior to the date of the conveyance : Byrod’s Appeal, 7 Casey 241; Fisher’s Appeal, 9 Casey 294; Hoffman’s Appeal, 8 Wright 95. The following special return is indorsed on the Whigham writ, viz.: “I do certify that by virtue of this writ, to me directed, &c., I did expose the premises within described to sale by public vendue or outcry and . . . . sold the same to William Bedell for $4,500,” &c. Ilis deed to the purchaser also recites the Whigham judgment, execution and sale by virtue thereof, and makes no mention of any other judgment or execution. Upon this state of facts, it cannot be doubted that the quality of the title acquired by the .purchaser is far inferior to that which would have passed to the defendant if the sale to him had been consummated. To meet the difficulty thus presented, the plaintiff relied on the fact that there was in the sheriff’s hands, at the same time, a pluries writ on the Caughey judgment, above mentioned, on which the following return was indorsed : “ For return of this writ, see fi. fa. No. 205 July Term 1876.” The. execution thus referred to is the Whigham writ. In connection with this, the plaintiff. offered to prove by the sheriff that the sale was in fact made on both writs, but the learned judge excluded the testimony as incompetent, and in so doing we think he was clearly right. When the return of the sheriff and the recitals in his deed show a sale on one writ only, it would be a dangerous precedent to permit him or any one else to come in on the trial of a cause and prove that the sale was also made on another writ at the same time. To do so would greatly impair the security of titles based on sheriff’s sales, and at the same time encourage official carelessness, of which there is quite enough already.

The act of June 16th 1836, prescribing the manner in which judicial sales of real estate shall be evidenced, requires that, “ The officer making sale of any real estate under execution . . . shall make return thereof, indorsed on or annexed to such writ, and give the buyer a deed duly executed and acknowledged ” : Purdon, 658, pi. 119. In thus requiring that 'the return shall not only be in writing, but also indorsed on or annexed to the writ, and that the sale shall be further evidenced by a deed to the purchaser, it was surely not contemplated that the return so made might afterwards be explained by parol testimony to mean something else. The act of April 21st 1846 makes ample provision for the correction or amendment of defective or informal returns: Purdon 659, pi. 130. After the trial of this case, the return in question was amended, in the regular and orderly way, at the instance of the defendant; but that cannot affect the question under consideration. It was not amended at the time of the re-sale. The state of the record, as it then stood, was such as to admonish bidders that the quality of the title then offered was inferior to that which would have passed by the first sale, and consequently the property would probably bring less than it did at the first sale.

For these and other reasons that might be added, we are of opinion that the testimony offered by the plaintiff was rightly excluded.

Judgment affirmed.

Merour, J., dissents, as there was amply sufficient to amend by, and the parol evidence should have been received.