By the Court.
Jenkins, J.,delivering the opinion.
1. The first exception presented by the record in this cast is, that the verdict is contrary to the charge of the Court.
The Court charged the jury, “that the plaintiff must show a sale, by the sheriff, under an execution, which must be produced, or its absence accounted for.” The brief of evidence in the record shows, that the land was sold under the execution in favor of Leander W. Crook, and under no other, though two others which were in evidence had been levied on the land more than a year previously, but were permitted to lie inactive in the sheriff’s hands. After all the executions had been put in evidence, the sheriff testified, positively, that he did not sell the land under any of the ú. fas. in evidence. The execution of Crook was not in evidence, nor was its absence accounted for. The charge of the Court on this point was certainly correct, and the verdict of the jury was contrary to it. This was one of the grounds on which the defendant moved for a new trial, and the Court erred in not granting that motion.
This would itself be a sufficient reason for sending the cause back to be re-tried, but as there is a more important question in reserve, which must recur on any subsequent trial, we deem it proper to dispose of all the questions raised by the bill of exceptions.
2. Having held, in considering the first exception, that the execution under which the sheriff sold the land, was an essential part of plaintiff’s proof, unless its absence were satisfactorily accounted for, and secondary evidence supplied; and such proof being wanting, it follows that the verdict was without sufficient evidence to support it, and this was ground for setting aside the verdict.
3. The sheriff was an incompetent witness, unless indem*398nified against costs. This seems to have been recognized by all parties, and the statement in the record is, that the plaintiff proposed to indemnify him (i. e., dhe usees or beneficiary plaintiffs), and the cause proceeded as though he had been indemnified; but in point of fact he had not been. All this amounts to a waiver on the part of the defendant below, and we did not understand him as insisting on this exception in this Court. No sufficient reason was suggested in the argument, and none occurs to us, for holding that the deputy sheriff was an incompetent witness. He was no party to the suit, could have no interest in the plaintiff’s success, and was not in any way liable for costs. There was, therefore, no error In these rulings. •
4. The several fi. fas. in favor of the plaintiff’s usees being offered in evidence, were objected to, and plaintiff in error excepts, that the Court erred in overruling the objection and admitting the fi. fas. They were not offered or admitted for any purpose, other than to show the interest of the plaintiffs as usees, and for this purpose were not only proper, but necessary evidence. The Court did not err in admitting them. -
5. The plaintiff, at the trial term, moved to amend his declaration by adding other usees than those originally named in it. This amendment neither introduced a new cause of action, nor in any way varied the liability of the defendant. Technically speaking, it did not change the party plaintiff. The sheriff is the party plaintiff; with him the contract set out in the declaration was made. The usees are introduced to show, in the language of the statute, who is, or are, interested in the enforcement of the contract. If any party having an interest identical with the usees named in the declaration, be accidentally omitted, it would be proper and just that the omission be supplied by amendment. It was argued that there was, by this amendment, a misjoinder of plaintiff’s. But there was, in reality, after the amendment, but one plaintiff, viz.: the sheriff. He is the party authorized to sue. He has discretion in such cases, either to proceed against the recusant purchaser for the whole amount of his bid, or to resell the property, and hold him liable for any loss that may result.
There can be but one recovery for such failure, or refusal to comply with the terms of the sale, and as the Act provides that the sheriff shall sue for the use of the party interested, all persons so interested should be joined as usees. The *399money recovered, if any, goes into the sheriff’s hands, and he is subject to the order of the Court, in distributing it among the usees. The amendment was properly allowed.
6. The sixth and last exception is, that the Court erred in the charge to the jury.
The chief objection under this exception, which brings up the most important question in the case, is to that part of the charge thus expressed: “That parties have a right to claim the proceeds of the sale at any time before the money is paid out by the sheriff.” With this proposition as applied to money actually in the hands of the sheriff, we have in this case no concern, and must not be understood as dissenting from it in that sense. We, however, distinguish money in the sheriff’s hands, from money for which he is compelled to sue, and the recovery of which may be resisted on various grounds. An idea seems to obtain, to a greater or less extent, that nothing more is necessary to insure a recovery under this statute, than to prove a sale by the sheriff with competent authority, and that the defendant made the last, or highest bid, and then failed, or refused to comply with the bid. In Collier vs. Perkerson, at the present term, we have given a different construction to the statute, holding that the Legislature did not intend to make the particular class of contracts embraced in its provisions more sacred than any other — did not intend to deny to the party sued a defence. Had this statute not been passed, the remedy of the usees would have been by bill in equity for a specific performance of the purchaser’s contract. Were they now pursuing that remedy, the defendant “might, insist upon any matter which shows it to be inequitable to grant such relief.” 1st Story’s Equity, §161. By our construction of the statute, the Legislature intended only to change the remedy — to make it more summary, and less expressive, leaving to the defendant all the defences of which he might in the other procedure have availed himself. If he can show that, owing to ascertained laches, or .covinous concealment, or positive fraud of the party seeking to enforce the contract, he had been induced to purchase, when, with a full knowledge of all the circumstances of plaintiff’s claim, and that it would be asserted, he would npt have done so, he should not be held liable.
In the case at bar, the land was sold under Crook’s execution. The defendant represented Crook as his attorney at *400law, Crook not being present. The case stands, then, as though Crook, the plaintiff in execution, had been the purchaser, and were now the defendant below.
All the circumstances indicate that Crook’s object was to procure satisfaction of his debt, or some part thereof, rather than to acquire title to the land. To secure this object, he was willing to purchase the land at its full value. He therefore caused a levy to be made on the land, and brought it to sale. .Like a vigilant creditor, and a careful man, when th$ time of sale arrived, he ascertained what liens upon this land were in the sheriff’s hands. Finding only two, there, viz.: the execution of Penn and Arnold (two of the.usees) both of which had been levied on the land (though not pressing it to sale), and both of superior lien to his own, he determined for, himself what price he would give for the land, knowing that so much of the purchase money as the two superior liens called for must be paid upon them, and reasonably calculating that the remainder would be credited upon his own fi. fa., was induced to purchase. In the course of the bidding, he is informed by the deputy sheriff, who supposes he may be ignorant of the fact, that there are in the sheriff’s hands, to- claim the proceeds of the sale, older fi. fas. than his own. He replies, that he is aware of that, and would be prepared to pay them off, and have the balance of the purchase money credited on his own. Having purchased the property, he forthwith informs the sheriff that he is prepared to settle in that way. The sheriff makes no objection, but for some reason (probably pressure of other official business) defers the settlement to a later hour. At a subsequent time, on the same day, the sheriff informed the plaintiff in error that the calculations had been made, and he was ready to settle with him. They proceeded to a settlement, when the sheriff produced sundry Justices’ Court fi. fas., older than that of the purchaser, which had been placed in his hands to claim money subsequent to the sale. The purchaser then refused to pay money to be appropriated to the satisfaction of those fi. fas., but again offered to pay all that might be due on the fi. fas. in the sheriff’s hands at the time of the sale, of older date than his, and claimed to have the remainder credited on the latter. The sheriff declined to make such settlement, and this suit was instituted. There is no proof that the purchaser knew of the existence of those Justices’ Court fi. fas.; and *401had he known of their existence, he could not know but that they had been satisfied. He had used diligence to ascertain what liens were then brought forward to be asserted against the land about to be sold by his own diligence. Had those H. fas. been placed in the sheriff’s hands before the sale, he would have known it, and it is morally certain, he would not have become the purchaser; because his whole conduct shows that his object was not to acquire the land sold, but to secure his debt.
Why were not those Justices’ Court ft. fas. placed in the sheriff’s hands before the sale? Clearly, either from laches, or in the practice of a cunning stratagem to induce the levying and selling creditor to compete as a bidder, under the expectation of having the purchase money credited on his execution, thus substituting the land foi* the judgment debt. The fact that the executions were, so soon after the sale, placed in the sheriff’s hands, is suggestive of the idea, that their owners were present with them in their pockets all the while, cunningly, rather than negligently, concealing their existence, and the use to be made of them. To us, it seems clear enough, that either by the laches or covin of the owners of those ñ. fas., the plaintiff in error was induced to make a purchase which he would not otherwise have made, and this constitutes a good defence against their attempt to coerce payment of the purchase money. As to those two usees whose ñ. fas. had been levied on this land long anterior, and which were in the sheriff’s hands at the time of the sale, the defence of the plaintiff in error against them stands on a different footing-. He had offered to pay those fi. fas., and he may, indeed must be presumed to have been ready and willing to do so whenever the sheriff would settle with him on the terms proposed. To such settlement we think he is entitled. To prevent misapprehension, we repeat, that we distinguish this case from the case of a claim of money actually in the sheriff’s hands.
We think the charge-of the Court on this point was erroneous, and for this reason, as for other errors specified, we reverse the judgment of the Court below.
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, *402that the judgment of the Court below be reversed, and a new trial ordered. First, on the ground that the fi. fa. under which the sheriff was alleged to have sold the property, for the purchase of which defendant is sought to be held liable, was neither put in evidence nor accounted for; and in this-the verdict was contrary to law and the charge of the Court, and unsustained by evidence. Secondly, on the ground that the usees, who were plaintiffs in execution, placed in the sheriff’s hands after the sale, and after the defendant had offered to settle with the sheriff according to1 his bid, are not entitled to this statutory remedy against a vigilant creditor, who purchased with reference to liens in the sheriff’s hands, and with a view to secure his own debt; and that the other usees brought in by amendment are not entitled to this remedy against him, because before suit brought defendant had in good faith offered to pay their fi. fas. out of the purchase money.