If a sheriff sell property under an execution, and consummate the sale by investing the purchaser with the title, he is liable for the amount bid, whether he has received it from the purchaser or not; for it was his own folly, that he parted with the property without receiving the purchase money, and he must be liable for his own misconduct. Denton v. Livingston, 9 John. Rep. 96. But it is equally clear, that if a sheriff offer to sell real or personal property, and a sum is bid for it, and it is knocked off to the bidder, who afterwards refuses to pay for it, and.the sheriff, in consequence thereof, refuses to consummate the sale, or to execute to him a title, then the sheriff is not bound for the amount thus bid, but not paid. Nor will such an ineffectual attempt to sell the property, create any liability on the sheriff, but he should re-sell the property. Or if, from any sufficient cause, he cannot re-sell before the return of the execution, he should return those facts, and if he has been guilty of no neglect, the plaintiff in execution has no cause of action against him. 2 H. & G. Rep. 269; 1 Dall. 419.
The only evidence introduced to charge the defendant with the amount bid, was his return, ¡made upon the execution, which was in the following language: “ Levied the 20th of February, 1841, to be sold on the first Monday in April, 1841 — advertised and sold the land at that time, to W, M. Taggert, for $492. John Nabors, sheriff. The purchaser failed to comply with his bid. John Nabors, sheriff. The charge of the court was, that this return was conclusive: to show the liability of the defendants, so long as it remained unaltered. This charge can only be sustained on the ground that the return showed, that the title to the land, by the sale, was vested in'Taggert, who bid for it, and that the sale was consummated and complete. We cannot so construe this return, for it is settled by the decisions of this court, that a sale of land by a sheriff is within the statute of frauds; and although the memorandum made by the sheriff of the particulars of the sale, and who was the purchaser, is sufficient to satisfy the requisitions of the statute, yet the legal title is *545not vested in the purchaser, pntil the deed is executed and delivered to him. Robinson v. Garth, 6 Ala. 204, and the cases there cited.
When the deed is exeeuted and delivered, whether it will have relation back to the day of sale, is an unsettled question; but no legal title passes to the purchaser without it. Here there was no evidence to show, that the sheriff executed to the bidder a deed, but such evidence as is -afforded by the return, and we think the true construction of that return is, that the sheriff offered the land for sale, and it was knocked off to Taggert, but he failing to pay the amount bid, nothing further was done. This being the construction that should have been placed upon the return, and the title not having passed to the purchaser, the court erred in the charge given. If however, it should appear in another trial, that the sheriff had executed and delivered the deed, notwithstanding the failure of the purchaser to pay the amount bid, then as we have seen, both the sheriff and his securities would be bound to the plaintiff for the amount.
But it was the duty of the sheriff to re-sell the property, after the failure of the purchaser to comply with his bid. If the sheriff could have done so, before the return of the execution, and has neglected to do it, whereby the plaintiff in the execution has been injured through his neglect, then the sheriff and his securities are liable, to the extent of the injury ; and in this point of view the value of the land may become a material inquiry in another trial; if so, it is competent, either for the sheriff or his securities, to show that the defendant had but an equitable title to the land, which could not fee sold by execution at law. See Elmore v. Harris, 13 Ala. 360, and the cases there cited.
As the ruling of the court was contrary to, the law, the judgment is reversed and the cause remanded.