The opinion of the Court was delivered by
Moses, C. J.The argument for the motion proceeds upon the assumption that the advertisement of the Sheriff and his reference *19to it at the time of the sale, not only implied that the whole sum expressed in the condition of the bond was due, but amounted to a positive representation that no portion of it had been paid. We do not concur in this conclusion. The condition stipulated for the payment of “ eight hundred dollars at the signing and sealing of this bond.” The instrument is found in the hands of the obligee, and a compliance with the condition on the performance of which his acceptance depended was properly inferable from his possession of the bond. It was at least enough to move the purchaser to inquiry, and he cannot complain if, with an intimation which was sufficient to induce further investigation, he refrained from making it The same inference would not follow in regard to the installments due at the time of the sale. The delivery raised no implication as to their payment. The satisfaction of these was not a condition precedent to its delivery. They became payable after and by force of it, and not, like the eight hundred dollars, “at the signing and delivery.”
But conceding that the appellant is not affected with notice of payment, and is right in supposing, as he contends, that the said sum is included in the condition as an unpaid portion due on the day of sale, he cannot prevail in his motion. The rule of caveat emptor has been too long applied in this State to sales by a Sheriff tobe now questioned. In view of this well-recognized principle, his counsel claims that while it does extend to Sheriffs’ sales it is only so far as the title and quality of the property are concerned, and that it cannot embrace the sale of a bond, whose “quality” must be limited to the solvency or insolvency of the obligor, without regard to the amount due upon it. The properties which belong or are incident to the article or commodity are component parts of its quality. They are of the elements which are necessary to its composition as a whole. The very idea of a bond implies a sum due, which is a “ quality ” as essential as “ the solvency or insolvency of the obligor.” What is there in the form or character of such an instrument which should subject it to a principle different from that which is applied to other articles, which may be of a kind and character altogether dissimilar from that which their appearance indicates? If one should purchase at Sheriff’s sale a bond conditioned to pay a certain sum, and should afterwards ascertain that he would be restricted in his recovery against the obligor to an *20amount far below it by reason of a want of consideration as to the whole, or some other legal objection availing against it, would it constitute a sufficient defense in a suit by the Sheriff against the bidder for the full amount at which the bond was knocked off? The rule contended for in the argument for the motion seeks support in the proposition which it submits “ that at a Sheriffs sale there is an implied understanding that the articles are what their appearance indicates and that they are not disguised so as to appear what they are not.” If an ariiele was disguised so as to represent something of a greater value for the purpose of inducing a higher bid even at a Sheriff’s sale this would amount to fraud, and any actual fraud would affect it to the same extent as if perpetrated at a sale between private parties. On the same principle, fraudulent representations by the defendant áre held to vitiate a sale by a Sheriff.
Nor is there better foundation for the proposition of the appellant which interposes on his behalf the ground of mutual mistake. That doctrine, which is recognized as well in the Courts of law as of equity, in cases where it can be properly applied, has never been extended to sales by Sheriffs. The reasons to which it owes its origin are inconsistent with those which result in the principle of caveat emptor.
The appellant’s last exception raises the question whether he was ever fixed with the character of emptor. It is not material here to inquire whether there was in fact any sale, the purchase money not having been paid, nor to consider whether the contract was executed or executory.' In this connection it may be enough to say that it has been held in more than one case that a Sheriff is not bound to resell before he can maintain his action for the price agreed upon against a purchaser refusing to comply.—Moore vs. Aiken, 2 Hill, 403; Elfe vs. Gadsden, 1 Strob., 225. It is true that where the sale is complete by the delivery of the article sold the Sheriff cannot afterwards seize and resell because the price has not been paid.—Cochran vs. Roundtree, 3 Strob., 217. His remedy there would be confined to an action for the purchase money. The right of the Sheriff to resell is by virtue of a statutorj provision, which would fail to accomplish the very purpose it proposed if the defense here contended for could prevail, as is said by Judge Wardlaw in the case last above cited : “ The power to enforce the *21compliance of the purchaser with the terms of sale by reselling at his risk, which the statute gives to a Sheriff, is not a power to rescind an executed contract, but a summary means of ascertaining the damages which have resulted from non-performance of an executory one.”
The course to be pursued by a Sheriff in the event of the noncompliance of the last bidder is directed by the 10th Section of the 55th Chapter of the General Statutes, 473. The liability, fixed by the Act, does not necessarily proceed upon the fact that a perfect and complete sale has been made, but follows from the non-compliance of the bid. It is that which gives the right to resell and the action to the Sheriff for any difference between the bids. It is because the sale has failed by the action of the last bidder to effect the object it was intended to accomplish, and to insure’certainty in Sheriffs’ sales, that this requisition of the statute has been interposed. The Act impressed upon the purchaser refusing to comply with the terms of sale the character of “ emptor” for all the purposes and ends that it contemplates, and provides a mode for making him responsible for his bid at the first sale by requiring him to make it good by a liability to a resale at his risk. The whole design of the statute would fail if the defaulting bidder could claim exemption from the provisions on the ground that, as he had not paid his bid, he was no purchaser and therefore exempt from its operation. The statute itself designates him in terms “ the purchaser.”
The motion is dismissed.
Wright, A. J., and Willard, A. J., concurred.