Johnson v. Reese

By the Court.

Benning, J.,

delivering the opinion.

Was the Court below right in sustaining the motion to dissolve the injunction? One of the grounds of the motion was, that there was no equity in the bill. If that ground was good, the answer must of course be in the affirmative.

Is it true, then, that there was no equity in the bill ?

Both the first and the second purchaser bought with notice of the sheriff’s omission to advertise the sale of the land “in three of the most public places in the county but there was no collusion between twem, or either of them, and the sheriff. The question, therefore, is, did this omission in the sheriff' aud their notice of the omission, render the sheriff’s sale void ?

If, notwithstanding the omission, the sheriff had, still, authority to sell, the sale was not void, but was valid ? Bid the sheriff, then, have authority to sell ? It is conceded that he had, unless the 33d section of the Judiciary act of 1799 deprived him of the authority. That section is as follows : “No sales in future shall be made by the sheriff, of property taken under execution, but on the first Tuesday in each month, and between the hours of ten and three in the day; and it shall be the duty of the sheriff to give thirty day’s notice in one of the public gazettes of the State, of all sales of lands and other property executed by him, and also advertise the same in three of the most public places in the county where such sales are to be made, and shall give a full and complete description of the property to be sold, making known the name of the defendant, and the person who may be in possession of the property, except horses, hogs and. cattle, which may be sold at any time, by the consent of the defendant; ancl in which case it shall be bis duty to give the plaintiff ten-days notice thereof, and also to advertise the same in three or more of the most public places in the county where Such property may he, at least ten days before the sale.” Cobb 509. This section says, then, that it shall he “the duty” of the sheriff to advertise his sales, in three of the most public places in the county ? But is that saying that if he fails so to advertise, his authority to sell shall cease, and, any sale made by him shall be void ? We think not. The first part of the section says, “No sales”“shall be made” “but on the first Tuesday in each month, and between the hours of ten ancl three.” This is stronger. This amounts to saying that the sheriff shall not have authority to sell at any other time. After this, when it comes to speaking of the advertisement, the form of expression changes, and becomes weaker. It shall he the duty of the sheriff to advertise his sales, &e., not that no-sale shall be made unless he does so advertise them. Such is the form the expression then assumes.

Some effect ought, we think, to be given to this charge, in the form of the expression. Ancl the least effect to he given to it seems to be to say that the intention was that the sale should be valid, notwithstanding the omission to advertise it, but that the sheriff should be liable to make good any loss happening to any one interested, occasioned by the omission to advertise. Ancl giving this effect to it, would be doing what would be best for both the plaintiff and the defendant in the Jifa. ; for it would operate to encourage persons to become bidders for the property, and to encourage bidders to run the property to its value.

We think, then, that the only effect of the sheriff’s omission to advertise this land, in three of the most pub-lie places of the county, was to render himself liable to whomsoever the omission injured, to make good the injury. We think that the effect did not go further, and render the sale void.

Consequently, we think that there was no equity in the bill, and, therefore, that the judgment dissolving the injunction was right. Taking this view of the case, it becomes unnecessary to notice several other questionswhich were argued.

If there had been a fraudulent collusion between the purchaser and the sheriff, the ease plight have been different.

Judgment affirmed.