The bill is filed on the assumption that one who purchases, at a fair price, a slave or other articles of a debtor, whose property is subject to the lien of an execution, but who has other slaves and property besides the one sold sufficient to satisfy the execution, is entitled to the protection of a Court of Equity, so that provided he gives notice to the sheriff of the fact of his being a purchaser of one of the slaves, and forbids the sheriff from selling that particular slave, and requires him to make the amount of the execution by selling some *Page 244 one of the other slaves, and the sheriff, nevertheless, proceeds to sell the particular slave, equity will, in favor of the purchaser at private sale, convert the purchaser at the execution sale into a trustee, if he is fixed with notice of the facts, and required him to convey the slave to the purchaser a private sale.
The bill is of "the first impression." No case of dictum was cited to support it, and we are not able to see any principle upon which such an equity can be based.
It is true the title of a debtor is not divested by the execution. If he sells, the purchase acquires the property subject to the lien of the execution. If that be removed his title is good, but if it be not removed, his title will be divested by a sale under it, and neither a Court of law or equity can control the power of the sheriff to make sale under the execution. Indeed, such an interference would give rise to much inconvenience, and greatly embarrass officers in the discharges of their duties. One man will say, "I have bought this negro and forbid (314) you from selling him, because the other property is sufficient out of which you can make your money." A second says, "I have bought this negro and you must not sell him." So a third and a fourth; and the sheriff may properly reply, "the law has not made it my duty to take care of your rights, or to settle priorities between you; I have power to sell any one or all of these negroes in order to satisfy the execution; it was your folly to buy property subject to my lien, without taking care to provide for the payment of the executions." This position of the sheriff is unanswerable. The courts could not interfere with the action of the sheriff under this general power given by the execution, even in behalf of a surety whose property was sold, or was about to be sold, to pay the debt in the first instance, although it was known to the sheriff that the principal had property out of which the debt could be made; sec. Easonv. Petway, 21 N.C. 44. It was necessary to pass an express statute for the protection of the surety against the capricious and wanton exercise of this power by sheriffs and other officers; Rev. Code, ch. 31, sec. 124. It has not been deemed expedient by the Legislature to pass a statute for the protection of those who choose to buy property subject to the lien of an execution, and who fail to provide for its satisfaction.
The only case cited on the argument was Smith v. McLeod, 38 N.C. 390, and the counsel of the plaintiff contended there was a direct analogy between the relation of a surety and that of a purchaser at a private sale, from a debtor, of property subject to the lien of an execution. We are not able to perceive the supposed analogy. In the case cited the Court agree there is no ground on which to control the action of the sheriff and relieve the surety, on the ground of a privity between him and *Page 245 the creditor, by reason of which the creditor is bound to let the surety have the benefit of any security or lien, which he has acquired as against the principal, and decide that the active interference of the creditor in withdrawing from the hands of the sheriff an execution, under which a lien had attached to the property to the principal, was (315) a discharge of the liability of the surety by matter in pais. But where is the analogy? There is no privity of relation between the creditor in the execution and one who chooses to purchase a part of the property which is subject to the lien of his execution. On the contrary, such a purchaser at private sale in a stranger, and, in fact, an intermeddling stranger, who had no business to buy any part of the debtor's property, without taking care to see that the prior lien was satisfied.
If the purchaser at private sale, is not entitled to relief against the sheriff, or a purchaser under the execution sale, when the sale of the particular slave is made capriciously or wantonly by the sheriff, when the debtor has other property liable to execution, the case in much stronger against him when the sheriff having received other executions junior to the private sale thinks it to be his duty to sell the particular negro, under the older execution, in order so to conduct the business as to satisfy as many of the executions in his hands as the property of the debtor can be made to reach. For the sheriff acts as the agent of all the creditors who have executions put into his hands, and his conduct then is not capricious or wanton, but in pursuance of a duty to the creditors imposed on him by having the executions in his hands.
Nor is the case altered by the fact that the sheriff and the purchaser at execution sale had an interest on account of their liability, as the surety or otherwise, of the debtor in the execution. The sheriff had the power, under the older execution, to sell this particular negro. It was his duty so to make the sales as to cause the property of the debtor to go as for as possible towards discharging all the executions in his hands, and neither his power or duty could be affected by the fact that the had a collateral interest which was subserved by the exercise of a power in the performance of his duty, and this can furnish no ground on which a stranger who chose to interfere can base any rights to have relief in equity.
The view we have taken of the case makes it unnecessary to decide whether the plaintiff was a bona fide purchaser or one who had taken a bill of sale, absolute on its face, which was intended as a (316) mere security, that fact not being expressed on the face of the bill of sale, in order to avoid the necessity of giving notoriety to it by registration, so as to enable the debtor to conceal for a time the fact of his insolvency.
PER CURIAM. Bill dismissed. *Page 246