I dissent, and think that the judgment should be reversed. Apart from the very close questions of law which arise in the case, by which, of course, it must be determined, it is proper to remark that it would be a great hardship to compel appellant to pay the large amount of money and interest claimed to be due respondent on the bid at the constable's sale. Appellant had advanced to the California Steamship Company large sums of money — at one time amounting to eighty-six thousand dollars. At the time of the constable's sale the company owed appellant about twenty-eight thousand dollars; he paid eight hundred and fifty-five dollars on his bid; he also paid one thousand dollars on the judgment recovered against the constable and his sureties; he also paid several hundred dollars on a former sale of the same property, and he not only loses all of this, with the exception of a very small percentage coming from the effects of the insolvent corporation, but must now pay, in addition, the amount of the present judgment which is for eleven thousand one hundred and thirty-six dollars and forty-seven cents, and interest. I think that it can be gleaned from the evidence that the bid of ten thousand dollars was understood by the judgment debtor, by the constable, and by the appellant to be fictitious except as to the amount necessary to pay off the judgment lien — eight hundred and fifty-five dollars — which sum appellant paid to the constable; and that the ten thousand dollars was bid with the consent of all parties merely to enhance the apparent value of the property, appellant supposing that it would be deducted from the large amount of indebtedness from the company to himself. It is *Page 697 alleged in the complaint that the constable never demanded payment of the check given him by appellant for nine thousand one hundred and forty-five dollars. The judgment debtor, before it went into insolvency, never made any objection to the nonpayment of the balance of the bid. Payment of the check was immediately stopped by notice of appellant, no demand was ever made on the bank on which it was drawn for its payment, and the check was destroyed. No proceedings were taken under section 695 of the Code of Civil Procedure to have the property resold. This action was not commenced until nearly four years after the date of the bid. There is no finding as to the actual value of the property, and no evidence going very directly to that point, but there is evidence tending to show that it had no value approaching the amount of the bid. Under these circumstances the appellant should not be compelled to pay this large sum of money unless strict law inexorably demands it; and I do not think that there is such a demand.
As to the law governing the case, without considering the many other points made by appellant, I will merely say: 1. That in my opinion there was no privity of contract between the respondent and the appellant as to the alleged cause of action, and, therefore, respondent cannot maintain this action. There are many authorities supporting this view, but it will be sufficient to notice the cases of Galpin v. Lamb, 29 Ohio St. 529, and. Adamsv. Adams, 4 Watts, 160, and the cases referred to in the opinions in those cases. In Galpin v. Lamb, supra, the syllabus, which is a correct statement of the point decided, is as follows: "A judgment creditor cannot maintain an action against a purchaser of real estate at sheriff's sale, to recover damages for the breach of a contract of sale." Of course, a judgment debtor is in the same position touching this point as a judgment creditor. In the opinion the court say: "The contract of purchase is made with the officer as representing all the interests involved in the suit in which the judgment or decree of sale is rendered. He and the purchaser are the only parties to the contract of purchase, and he alone can maintain an action against the purchaser to recover the purchase money. The parties to the judgment or decree have different interests *Page 698 and stand in different relations to the property, some holding the relation of debtor and others that of creditor. But however numerous the parties or diverse their interests the officer represents them all, and none of the parties stand in such relation to the contract of the purchaser as to enable them to maintain an action on it." In Adams v. Adams, supra, the syllabus is as follows: "For a breach of contract between a sheriff, and his vendee of land, no action will lie in the name of anyone but the sheriff." In the opinion the court say: "The sheriff, in making the contract of sale with James Adams, was not acting as the agent of the plaintiff, nor yet of anyone else. He is considered the principal himself in such cases, and the legal as well as real party making the contract of sale. Although it be true that he acts in the character of a trustee, yet it must be borne in mind that it is as an officer of the law that he does so, and that it is from the law he derives all his power and authority; and in sales of property made by him as sheriff under this authority, he alone has the right to receive the money arising therefrom, and is responsible for the legal appropriation of it, unless it is brought by him into court for that purpose. It would inevitably produce great confusion and clashing of suits, to permit other persons, besides the sheriff, in their own names to maintain suit against a sheriff's vendee for breaches of their contracts made with him. It would also be inconsistent with every principle of analogy in the law." I have seen no cases where the point was directly involved which are in conflict with the above authorities. 2. Under any view, the action, in my opinion, is barred by the statute of limitations. The alleged action is based upon the bid made by the appellant at the sale, and not upon a written instrument, and it cannot be brought within any category of actions not barred in, at least, three years.