delivered the opinion of the court.
Samuel Blight, a citizen of Pennsylvania!, held claims to a considerable quantity of. lands in this state, situated principally in the county of Hardin, but extending largely into the counties of Hart and Grayson; and he came to this state and took up a temporary residence in Hardin county, and boarded with his family at a public inn in Elizabethtown, for the avowed purpose of investigating his land claims and settling his business here.
On the 17th of March, 1820, he constituted Benjamin Tobin, a practising lawyer, resident of Hardin county, his agent, by letter of attorney, authorizing Tobin to lease his lands, to receive and recover rents, by law or otherwise, and delivered to him sundry notes, leases &c. evidences of rent due. Tobin was to receive one third collected, for his services. Tobin also acted as attorney at law for Blight in sundry suits, chiefly, if not entirely, for rents due, in some of which he was successful, and in others not.
Tobin also brought against Blight, as attorney and counsellor at law, an action of debt, by petition, in in favor of David Simpson, and recovered a judgment therein against Blight, for $93 50, with interest from the 4th September, 1822, till paid, and about $7 16, costs. This judgment was obtained at the March term, 1823, in the Hardin circuit court, where both Blight and Tobin then resided. On the 25th of March, 1823, Tobin caused the first execution to issue on this judgment, directed to the sheriff of Grayson, an adjoining county, endorsed that notes of the Bank of the Commonwealth would be received in payment, that kind of paper being then at a depreciation of about two dollars for one. This execution Tobin carried to the sheriff, and caused.
On the 21st of June preceding, and upwards of a month before the first execution was returned, To-bin issued a second execution, directed to the sheriff of Hart county, which he caused to be levied on the lands of Blight extending into that-county also, amounting to ten thousand acres or upwards; and the whole thereof bounded by the county lines and the original lines of the surveys, without measurement, was sold under the direction of Tobin, and George T. Wood became the purchaser, and received the sheriff’s deed thereto, for the joint benefit of himself, Tobin, and a certain Thomas Johnson, at the price of $55 12 cents, in paper of the Bank of the Common wealth.
Tobin also, as attorney or counsellor at law, obtained another judgment against Blight, in favor of Southard and Starr, the amount of which was replevied by Blight; and on the 10th of December, 1823, an execution was issued on the replevin bond, against Blight and his sureties, for the sum of $87 84 cents debt, with interest and costs, directed to the sheriff of Hardin county; and Blight, to save his sureties, in writing, surrendered 1000 acres of land to the sheriff, who levied thereon, as well as on some personal estate, there being one other execution levied at the same time; and the 1000 acres of land was sold, and Tobin became the purchaser, at the price of $51 in paper of the Bank of the Commonwealth, and received the conveyance from the sheriff.
To set aside these sales and conveyances, Blight brought the two suits in equity now under consideration.
In the one he included the first and the last of theafore recited sales, making Tobin a defendant, and those who purchased from him.
In the second suit he embraced the second sale only, and made Tobin, Woods, and Johnson defendants.
All these sales are attacked upon the ground that they wei-e secret, carried on with address, and fraudiilent, and illegal; and also on the ground that To-bin was his agent to protect and preserve those yery lands; that he had.receivcd more money of his than was sufficient to pay the executions, and held it then in his hands, and ought to-have paid the executions, and therefore he made the payments under circumstances that constituted Tobin his trustee, and that he ought to surrender the title acquired by the most enormous sacrifices, and at unconscientibus prices.
Tobin, as well as the other defendants, contest all these grounds, and insist upon the title as their own.
On hearing, the- court below set aside the first sale, made in Grayson county, and decreed a release thereof, and refused to set aside the sale of the 1000 acres made in Hardin; and this composed the decree in the first named case, to reverse which both Blight (or Ills heirs since his death) and Tobin prosecute-their respective writs of error; the first complaining that the court did not set aside both sales, and the latter that either was set aside.
In the second suit the court refused to set aside the sale to Wood, Tobin and Johnson, in Hart, and dismissed the bill; and to reverse that decree, Blight’s representatives have prosecuted their writ of error.
We have considered these three writs of error together, as they depend on similar principles, although the circumstances of each sale are somewhat different.
A previous question or two, applicable to each case, is made. It is insisted that the chancellor has no jurisdiction of this matter, and that it belongs to a court of law, and that the motion to set aside the sale not having been made in the court of law within one year, no remedy exists to annul the sale.
We cannot concede that sales of land by fieri facias constitute a mode of alienation over which courts of equity have no control. We cannot expect to find precedents for such an exercise of jurisdiction in English chancery or in Virginia; because, that in these countries sales by fieri facias were rare or altogether unknown. But in the states which have iniroduced sales in satisfaction of debts by fieri facias, courts of equity have made them a subject of its revision, as is manifest by the cases of Woods vs. Morvell, 1 John. Chy. Rep. 502; Tiernan vs. Wood, 6 John. Chy. Rep. 411; Troup vs. Wood &c. 4 John. Chy. Re.p. 228;. Howell vs. Baker, ibid. 118; Gist vs. Frazer & Stewart, 2 Litt. Rep. 118. Analogous is the case of Strael’s ex’ors vs. Couns, 4 Cranch, 403.
We do not mean that a chancellor, in exercising this jurisdiction, will act as a revising court over the records of a court of law in executing their process, or make further use of errors at law than to prove or disprove the fairness or unfairness of the sale, tie will treat all the proceedings at law as valid, although error may appear therein, and will re- - lieve against the consequences thereof, because the rights acquired thereby cannot be retained in conscience; and in doing so, he will treat the purchaser as a trustee of the estate, and will not compel him to surrender it till equity is done to him.
In this respect the proceeding is more favorable to the purchaser, than in a court of law. His title is treated as legally valid, and his money is generally restored before he will be compelled to surrender it.
It is true a court of law will correct the abuses of its process, and that where fraud exists. But as to sales of this kind, the motion for fraud is limited by statute to one year; but the omission to pursue this remedy in the year, is rather a reason for the interference of the chancellor than against it. For the limitation is not on the powers of the chancellor, but on those of a court of law, and the omission to pursue one remedy does not preclude a resort to the other, provided the case is otherwise proper for a court of equity.
On the merits of these sales, a further preliminary observation is necessary. The person who was the legal purchaser at two of these sales, and a partner in another, was. the counsel for the plaintiff in both the executions, which were used.
It has been held, or at least said, by some chancellors, that a purchase by counsel-in such circumstances, ought not to be permitted to stand. The cases on this point are referred to by chancellor Kent, in the afore cited case of Howell vs. Baker, in which he descants with considerable severity on such purchases, and shews that authorities are not wanting to prove, that the purchasing attorney, in all such cases, must become a trustee for the original holder; and that redemption must be allowed. The reason of such a rule appears to be the same which forbids a sheriff to become a purchaser, by statute; or an executor or trustee to become a purchaser of articles of which he is the seller. The attorney for the plaintiff in an execution, is supposed to have such a control over the sale as to come within the reason applicable to the actual seller, and therefore ought to allow a redemption.
But without approving or disapproving these authorities, and not wishing it to be understood that we go the whole length of this doctrine, all the use we shall make of it is, to shew that the chancellor, , if he does not carryout this doctrine, will scrutinize a purchase thus made by counsel, with greater strictness than he would a purchase by one who had no control over the execution; and if there be circumstances or grounds to make such a purchaser a trustee, it will be done, securing to him all the money which he may have paid.
One circumstance attending all these sales, is calCllhried to lay them under a weight of suspicion not easily removed, and the conscience of the chancellor will revolt at permitting them to stand as they are. The price is so small, compared with the value of the land, and the sacrifice is so great, that it shocks the moral sense. The land in Grayson is proved to be worth something like $5000 or $6000 specie, and it is purchased for about $15. The land ia Hart is
There is one circumstance proved touching that sale more strong than any belonging to the sale in Gray-son. A person made known, before the day of sale, his intention to attend, and become a bidder. This was told by him to the counsel for the plaintiff in the execution, of whom he enquired the day of sale. He was flattered in reply with a partnership in the purchase, and told of the day of sale, when he might attend. He attended on the day pointed out, and the sale was over the day before, and he was laughed at because he came a day after the fair.
The only plausible reason on which we can suppose the court relied in sustaining this sale in Hart, whilst it set aside the sale in Grayson county, that the was made
.In the sale which the court did set aside, there if, -error in the details of the decree, which we feci ourselves bound to notice.
After Tobin had received the sheriff’s deed for the land in Grayson, be sold’and conveyed part of the land to sundry persons, who are made def’enants. These persons seem to have become purchasers oí the title from Tobin, in the following way. They had previously purchased the land from some other persons, under what claim or title is not explained in this record. But their vendor, or his representatives, walling" to secure them in their first purchase, bought in this title of Blight from Tobin, and paid him therefor $500 in paper of the Bank of Commonwealth, and Tobin by his, or their, direction, conveyed the title to these defendants, and each of them answer and deny all knowledge of fraud or improper practice in conducting the sale, and there is not the least proof that they had any notice or knowledge on this subject, except what the deed of the sheriff to Tobin conveys, which is fair on its face and gives no intimation of any impropriety, except what the small price intimated, and this we have seen of itself does not establish fraud.
The court decreed against tho§e defendants that they should relinquish, or convey back, their title to the complainant by deed with special warranty against themselves, and all claiming under them, “but not disturbing any prior or other title, the said
Now how these defendants could Gonvey with warranty against themselves, and those claiming under them, and yet be allowed to retain other claims to the land, is to us an inconsistency not reconcilable on the face of the decree. Moreover, how these. defendants could convey a title from themselves, and yet retain a title in themselves, is a problem which is not easily solved; for we are not acquainted with the process of severing or splitting asunder.titles after they are united in the same person; but conceive the law to be that if a purchaser holding one title honestly, acquires another dishonestly, so that he. must surrender the latter to its true owner, his former titlegoes along with it.
And the only way that he could excuse himself from such a consequence, would be to set up his first title, and shew its validity and superiority, and of course that he acquired nothing by the last title, which be ought to surrender back. If therefore, these purchasers from Tobin, ought to convey, they could not retain previous titles to the land, as they have not set up and shewn their superiority.
Rut we do not see the propriety of any decree against these defendants. So far as appears, they are innocent purchasers without notice of any impropriety in the sale. The bill ought therefore, as •against these defendants, to have been dismissed with costs.
But as Tobin held this title when be ought not, , and bas sold it to those innocent purchasers, by which Blight or his representatives have lost it, it follows clearly that he must account to Blight’s estate for the value ofthe land so conveyed away by him, to be fixed at the time of assessment, and this is the decree which ought to be rendered as to this portion of the land, he conveying back the title to the residue.
' As to the last sale in the county of Hardin, of J 000
We have come to the conclusion that the purchaser in this case ought to be construed into a trustee for the complainant, although there is some difficulty in saying that the purchase was against law; and we will add that there may be cases where the chancellor will interpose and permit a redemption of estates sold under execution, ever when a court of law would refuse to set aside the sale as a fraudulent violation of law, because the chancellor may do complete justice by restoring the money paid, which a court of law cannot do, and from the relation of the parties, equity may presume a trust which sometimes may become necessary to avoid an odious speculation on the distresses of the debtor.
Indeed cases are not wanting where a party plaintiff has bought in property at an enormous sacrifice, under execution, and the chancellor has directed it to be set up again at the price at which it was bought, and for as much more as would be bid, still preserving the interest of the purchaser by securing his money.
It is a settled rule that a purchaser is not bound, nor is his purchase affected by the irregularities of the sheriff in advertising and conducting a sale, and if injury results, the party must take his remedy against the sheriff. Hence courts of law but seldom set aside titles thus fairly acquired by an innocent purchaser acting under the confidence which ought to be reposed in the organs of the law.
But whether there might not be cases of that kind, where the chancellor would construe such a title into a trust, we need not now enquire. Suffice it to say, that in a case where the conductor and director of a sale, as Tobin was in this instance, knows of the irregularities of the officer, and that those irregularities had brought this land into market under circumstances which demanded so heavy a sacrifice, he ought to be compelled to surrender his title on i-eceiving his money.
If the sheriff had proceeded with the sale of the
This conclusion is not a little strengthened by the circumstance of the attorney deferring the sheriff from selling the horse, in order that the land might he sold. The fact was, the execution was laid upon the horse, and the authority of the sheriff to sell him was complete, and all that stood in the way of his sale then, before the land, (as was the rightful course) was that the then time and place was not advertised. This, however, was waived by Blight. But the attorney by his advice, defeated the sale of the horse, and thus reached the land. '
It is also proper here to take notice of the accounts of the parties brought into view by the pleadings. Blight insists that Tobin has received more of his money than is sufficient to pay the price of tliis land, and has adduced proof of his receiving money to some amount. Tobin admits the receipt of some money, but alleges that Blight owed him for fees, and has proved that he acted as counsel for Blight, so as to be entitled to fees to a greater value than what he has received; also that he has made some disbursements for Blight. If these services were rendered as counsel for Blight, in the recovery of rents only, then Tobin, by the contract proved, is entitled to one third only, if-the services were rendered in other cases, then he is entitled to reasonable fees. As Blight, therefore, or his representatives, must restore the purchase money, paid for the land, scaled to its specie standard, so an account must be taken of the money of Blight, collected by Tobin, allowing him one third thereof, for his services as counsel, as far as rent is concerned,
This account must be taken in the case, wherein Blight was plaintiff, and Tobin, Morrison Dewit, Wooldridge and others, are defendants; in which Tobin, on the restoration of his money, must be decreed to release, and convey the 1000 acres, and also all that part of Blight’s land lying in Grayson, which he has not sold and conveyed to Wooldridge and others, and the bill must be dismissed as to Wooldridge &c. grantees of Tobin, and an assessment of the value of the land conveyed to them respectively by Tobin, must be made by commissioners, and Tobin must be decreed to pay the amount thereof to Blight’s representatives. Morrison and Dewit, who are mortgagees of the 1000 acres, and who profess their readiness to release it, must be decreed to reconvey without costs.
In the case where Blight is complainant, and To-bin, Woods and Johnson, are defendants the def®ndants, on receiving the price paid by them, assessed in specie with its interest, must be decreed to re-convey all the lands lying in Hart county, with costs.
The decree in the writ of -error, Blight’s repre- • sentatives vs. Tobin, Wooldridge &c. must be reversed with costs, against all the defendants, except Morrison and Dewit, and the cause be remanded for proceedings, not inconsistent herewith.
In the case of Blight vs. Tobin, Wood and Johnson, the decree must be reversed with costs, and the cause be remanded for new proceedings, not inconsistent herewith.
Tobin must pay the costs of the writs of error prosecuted by him, in the suit, Blight vs. Tobin, Wooldridge and others, as he has failed to prosecute it with effect.