After the foregoing Opinion was delivered, the following petition for a re-hearing was filed:
J. Butterfield,attorney for the plaintiffs in error, respectfully states, that he apprehends this honorable Court have misconceived the nature of the application that was made in the Court below, to set aside the sale made under the execution in this case, and the law applicable thereto. The application was not to set aside the sheriff’s deed, but the sale under the execution.
Our statute provides that the sheriff shall sell real estate,, when susceptible of division, in separate quantities. In this case, the sheriff sold lands lying in different sections, townships and ranges, en masse. This sale was in express violation of the positive enactment of the statute, and this Court say in their opinion, “we have no doubt but what the sale was illegal and ought to be set aside,” but come to the conclusion that the remedy is in Chancery. I feel confident the Court have erred, in deciding that a Court of Chancery is the proper forum to be sent to for redress in this case. I call upon the Court to discriminate between a fraudulent sale and an irregular sale. This sale is irregular upon the face of the record. There stands the statute, declaring that the property shall be sold in separate quantities; here stands the sheriff’s return, that he, in violation of the statute, sold the property, en masse. The sale is irregular and void per se. There is, and can be, no dispute about the irregularity of this sale; not all the testimony on affidavits that could be taken between this time and doomsday could alter the facts as they appear on the record, or cure the defect in the sale, or throw one ray of new light upon it. Then why should the plaintiffs in error be saddled with a bill of costs in this Court, and turned over to a Court of Equity to obtain a decree to set aside a void sale?
Had not the Circuit Court, a Court of original and general jurisdiction, control over its own process ? Has it not the absolute power to set aside an execution which has been ir» regularly issued, or a sale which has been irregularly made under it? Where does the power of a Court of Law over its own process cease, and when does the power of a Court of Chancery commence ? Has any authority been cited, or referred to on this subject ? Establish by a judicial decision, that a Court of Law has not the power to vacate and set aside its own process on a sale which has been irregularly made under it, and you strikeo ut the very foundation of the administration of public justice. The sheriff is the mere agent and servant of the Court, and all his acts under the process of the Court are subject to its control and supervision.
In relation to the proceedings of a Court at Law, a Court of Chancery has no jurisdiction except in cases of fraud or mistake; and there is not a solitary case in all the books where a Court of Chancery has ever set aside a sale made under an execxition at law, except in the cases of frauds or mistake. It has no jurisdiction to interfere except in such cases. The Coxxrts of Law in New York have- claimed and exercised a concurrent jurisdiction with the Court of Chancery, in setting aside sales under executions for frauds and mistakes. But I aver that there is not a case or dictum to be found, that a Court of Law has not the power, or that a Court of Chancery has the power to set aside a sale irregularly made under an execution at law.
If a sheriff should sell a lot of land of great value, for a very small sum, there the sale would be regular on its face, but the inadequacy of the price for which it was sold, would be evidence of fraud, and in New York such sales have been set aside, both at Law and in Chancery. So, when a sheriff was, at the time of sale, tendered with the money, but refused to receive anything but specie, and refused to adjourn the sale, but sold the property at a sacrifice, there the Court of Chan-eery set aside the sale as fraudulent and oppressive. There are many such cases where the sale is irregular on its face, where all the forms of the law have been complied with, and in such cases a Court of Chancery is the proper forum to try the question of fraud. But, in the case under consideration, the sale was not made in the manner prescribed by law; the forms of the law have not been complied with; the sale was irregular on its face; — whether it was not also fraudulent, it is immaterial to inquire, — it was certainly irregular, the defect cannot be cured; there is nothing to give a Court of Chancery jurisdiction. There is no issue to be tried there; there is no testimony to be weighed or balanced; there is a fatal error in the sale, appearing of record; and not a single reason has been, or can be urged, why the Court that issued the execution has not the power to set aside the sale. But it is said that a deed has been executed to the purchaser at the sheriff’s sale, and that, therefore, it is a case of Equity jurisdiction, as the setting aside the sale will affect the title of the purchaser under his deed.
I am prepared to show, on a re-argument of this case, that, on an application to set aside a sale for irregularity in the sale, it is perfectly immaterial whether the sheriff has executed a deed to the purchaser or not; and that it is not the subject of inquiry; and there are several cases where sales have been set aside by the Court after deed executed. If the sale was irregular, and in violation of the statute, the execution of a deed does not cure the defect in the sale. It would be strange, indeed, if the sheriff, by executing to the purchaser a deed, could oust the Court, out of which the execution issued, from the power of setting aside a sale made in violation of the provisions of the statute. There is not a case to be found, that intimates such a doctrine. If the sale is irregular, it is made by the sheriff without authority and is void, and will be set aside by the Court out of which the execution issued, whether the sheriff has executed a deed or not. If the sale is irregular and void, per se, it is a new doctrine, that the. execution of a deed would cure it, or that the deed would confer on the vendee any right.
In all the cases referred to by this Court in the decision of this case, in support of the principle that a Court of Law would not set aside a sheriff’s deed on motion, it will be seen by reference thereto, that they are cases where the sale was irregular on its face, and a direct motion was made to the Court to set aside — not the sale — but the deed, on the ground that it was executed by mistake, or contained erroneous recitals. Now, in all such cases, whether the deed was executed by mistake, or contained erroneous recitals, is a matter to be established by proof dehors the record, and a Court of Chancery may be the proper forum, though in just such a case, the Supreme Court of New York say, that the party injured by the mistakes of the sheriff may have relief by a summary application to the Court under whose authority the officer acted, or through the medium of a Court of Chancery. Jackson v. Roberts, 7 Wend. 88. It will be seen by reference to all the cases cited by this Court to establish the position, that a Court of Law will not set aside a sheriff’s deed on motion, that they are cases where the sale was regular, and the motion was to set aside the deed, or to compel the sheriff to execute another deed. My motion was to set aside the sale, a sale made irregularly and in violation of the forms of law, and I do most solemnly and respectfully protest against the decision of this motion, by the misapplication of authorities in relation to the setting aside of a sheriff’s deed after a regular sale. If I had not ijnpeached the sale in this case, but had admitted it to be regular, and'had made a lhotion to set aside the sheriff’s deed, or to compel the sheriff to execute another deed to some other person, then the authorities relied upon by the Court in the decision of this cause would have applied.
I contend in this case, that even if the purchaser at the sheriff’s sale had been a stranger, and a bona fide purchaser, that has nothing to do with the question as it relates to the power and duty of the Court to set aside the sale for irregularity. In the case of Groff v. Jones, 6 Wend. 522, on a sale under an execution in favor of Groff against Jones, Smith and others, who were the plaintiffs in another judgment, became the purchasers and paid their bid, and yet the Court set aside the sale as fraudulent. The Court, in the decision of the present case, concede on the authority of the case in 2 Caines, 61, that the attorney is not to be deemed as a bona fide purchaser; but that he is to be deemed a purchaser subject to notice of all defects and irregularities. But the Court say that still he was a third party, and purchased for himself, and in his own name.
I respectfully suggest that the Court have mistaken the law in this respect, that where the plaintiff’s attorney purchases at a sheriff’s sale, although he purchases in his own name, yet his purchase will be deemed the purchase of the plaintiff in the, execution, and in trust for him. In the case of Torrey v. The Bank of Orleans, 9 Paige, 663, the Court say it is a settled principle, that no person, who is placed in a situation of trust and confidence in reference to the subject of the sale, can be a purchaser of the property on his own account; and that the principle was not confined to a particular class of persons, such as guardians, trustees and solicitors, but was a rule of universal application to all persons coming within its principle, which is, that no person can purchase an interest where he has a duty to perform that is inconsistent with his character of purchaser. 4 Johns. Ch. R. 118; 2 Sugden on Vendors, 120, 121, bottom paging.
In this case, then, Hoes, in contemplation of law, is deemed to have purchased for the plaintiff below, as his agent and in trust for him. The purchaser, then, was not a third party, or a stranger, and the case is to be treated and decided upon exactly the same principles, as though the defendant below had himself been the purchaser.
It has been contended on the argument, that Hoes should have been made a party to the writ of error. There is nothing in this objection. The motion below was to set aside the sale on the execution for irregularity. It never is necessary, in any such case, to make any person but the plaintiff in the execution a party. There is not an instance in all the numerous cases which are reported, of the purchaser being made a party. If the proceedings had been had in Chancery to set aside the deed, then it would have been necessary to have made the purchaser a party, but not otherwise. The counsel on the other side in the argument of this case, and the Court in their decision have appeared to consider it throughout in the light of an application to set aside the sheriff’s deed for fraud, and that it must go before a Court of Equity, and that testimony must be taken, and a solemn question tried, whether an actual fraud had been committed or not. When the case was a simple application to set aside a sale made in violation of the positive provisions of the statute; a case of irregularity, about which there is no question, andean be no explanation or cure, it seems to me, with all respect, a most solemn farce to send my clients into a Court of Equity on such an errand.
I request that the Court will order a re-argument of this cause; it involves important principles, and I think the case has not been fully considered.
J. Butterfield,
Attorney for plaintiff in error.
Upon this application, the Opinion of the Court was delivered by
Scates, J.A motion is made in this case for a re-hearing, upon the ground of a distinction between irregular sales, and fraudulent sales. It is contended that a Court of Law can take cognizance of irregularities; and in New York, they have also, concurrently with Equity, taken cognizance of frauds and mistakes, on such motions as these; but that Courts of Equity can only take cognizance of such sales, where there is fraud or mistake. It is further contended that the execution of a deed by the sheriff cannot oust the jurisdiction of the Court.
This Court never denied the power and jurisdiction of the Court to set aside executions for irregularity, or sales for the same reason. But the counsel seems to have overlooked the fact, that any and every irregularity will not make the sale void, but only avoidable. The former, a Court of Law would set aside, no matter what conveyances may have taken place; the latter might be of a much more doubtful character, under conveyances. As no right could he acquired under a void sale, the Court of Law, in setting aside the sale, upon motion, would do no injustice, that could be remedied by a Court of Equity, if the proceeding were there. In the latter case, there might be many rights affected, which could not be protected by a Court of Law, but which could in a Court of Equity.
As “solemn a farce” as it may seem to counsel, to he told by the Common Law Judge, that he cannot grant him the relief prayed, but that he may grant it, if addressed as a Chancellor, yet it is a distinction upon principles laid down in the very horn books of the law. And there would be more wisdom in addressing the sarcasm to the law making, than to the law administering department of the government.
The counsel offers, upon a re-argument, to show to the Court, that upon application to set aside a sale for irregularity, that it is perfectly immaterial, whether the sheriff has made a deed or not, to the purchaser. No additional authority has been vouched. Argument was heard upon this very point at the hearing, and authorities referred to. The one we have deliberately weighed, the others we have examined. In Groff v. Jones, the premises were bought in by the plaintiffs in one of the executions, and it does not appear that any conveyance had been made. The Court set aside the sale on the terms of the plaintiff in the first judgment being paid the amount of his judgment, and this is the only decision shown. The two cases of Jackson v. Roberts, 7 Wend. 88, and Jackson v. Newton, 18 Johns. 362, are mere dicta of the Courts as to this question. The authorities referred to in the opinion of the Court, were cited to show upon what grounds sales would be set aside, and not to show that it would be done in a Court of Law upon a motion, and after a conveyance to a third person as a purchaser. On this last point, there was not a decision in point referred to by counsel, except the dicta above.
But it is said, that the Court will hold a purchase by the plaintiff’s attorney, as made in trust for the plaintiff, and so the plaintiff will be deemed to he the purchaser. For this he refers to Torrey v. The Bank of Orleans, 9 Paige, 663; 2 Sugden on Vendors 120, 121, bottom paging; 4 Johns. Ch. R. 118. In the case in Paige, the cashier of the Bank was sent b)r the Bank to make the purchase, clearly showing an agency and trust.' In Sugden, he is treating of an attorney buying of, or selling to clients, the subject matter about which he is so employed as attorney, which the law prohibits, on account of the abuse that may be made of the confidential relationship, &c. In the case in Johnson’s Reports, the Chancellor strongly intimates that he would hold a purchase made by an attorney as in trust for the plaintiff, yet he does not decide it, but expressly puts it upon the ground from the evidence, that the attorney was plaintiff’s agent, and therefore bought it in trust for him. But I shall not decide upon this point, for whether it be the one way or the other, it will not help this case. Admit it to be in trust; it is one of the grounds of exclusive jurisdiction of a Court of Equity, and would show the impropriety of doing at Law, what can only be done in Equity. So, still the party cannot avoid that “most solemn farce” of going “into a Court of Equity upon such an errand.”
We are told, that we have misconceived the nature of the application that was made in the Court below, “and the law applicable thereto.” The record shows the motion to be, “to set aside the execution, and the sale made under it, and all subsequent proceedings, for irregularity.” The counsel here did not insist upon setting aside the deed. He only insisted upon setting aside the execution and sale. But when the sale is set aside, the conveyance must fall with it in this instance, where we hold the attorney to notice of all irregularity; so, in effect, uthe subsequent proceedings” must fall with the sale, of which this conveyance is a part. We laid no stress upon its not being so made and pressed in terms; the effect is the same. We hold this sale voidable for irregularity, and as circumstances exist in the case which might call for terms, and modified relief, we send the parties to a forum, which may modify the terms of relief, as to Equity may seem meet.
Motion denied.