The opinion of the Court was delivered by
If there were nothing in this case, but the construction of the act of assembly, and the question as to the time ■from which a law, expressed as this is, takes effect, the decision of the Cou.rt could not be supported — For where the lime from
Before the passage of the act of the 6th April, 1830, the law was settled, that the purchaser of land at sheriff’s sale, took it clear of incumbrances, and the purchase money went to the lien creditors, according to their legal priority; but, even then, a levy, subject to a specific lien, advertisement, sale and deed subject to it, did not pass the land free from that lien — but the purchaser took subject to it; because all the parties to a transaction can modify the terms as they please, provided they do not contravene express written law or public policy.
In the present case, every person interested understood and agreed, that the purchase was to to be clear of incumbrances. Every person bid on that idea, and every person believed the law required a sale on those terms, and would establish'those terms, unless there was an express agreement to the contrary. The very plaintiff, who now wishes to disregard this, directed the sheriff so to sell; and the purchaser bought on the terms of a title, clear of incumbrances, not merely because the law was so generally, but also because it was so expressly understood at the time of the sale. The application on the part of the person, who expressly directed the sheriff to sell in that way, to throw the land on the purchaser, subject to an incumbrance equal to one-third of its value, is most unreasonable. A Court is often called on to consider and decide in cases where settled principles are involved, which, in that case, appear to conflict. A man who purchases is bound, according to his contract, as understood by himself and the seller — and where all understand the contract in the same way, I know of no case in which a party is subject to any conditions, or liable to any burden, not contemplated by any one. If the bargain is binding at all, it binds as it was made and understood — and this principle is as plain and as obligatory on a Court as any other. No one is injured by the decision of the Court. It was said that the defendant, whose land was sold, was injured; but I apprehend it was said without consideration; for if the land had been sold, subject to a mortgage, for $500, would have sold for less by $500.
There is another rule, equally well settled — where, at the time of a sale, the seller, or any person present, represents the title to be in a certain way, and it turns out not to be so, yet as against the person making the representation, it shall be as represented. Now here the person applying for this money, by his attorney, directed this land to be sold free of incumbrances; although the client would not be bound by his attorney’s opinion or declarations as to the titles, yet as the attorney had the. direction of this sale, and, to a certain extent, the power of directing the terms, it never can be,
I have intimated, that in consistency with former decisions, a sale may be made under the present law, by which a purchaser may get the land clear of a prior mortgage; but to effect this, it must be with the eonsent of the mortgagee, the plaintiff at whose suit it is selling, and of the defendant, whose land is so sold. And this dught to appear in the levy, advertisement and conditions of sale and in the deed. It will not do to let it rest on parol proof of what was said at the time of the sale; it must, in some shape, appear in the proceedings — must form a part of the record of the sale.
A case, like the one before the Court, cannot again occur under the present act; and we have thought it right to intimate the necessity of hereafter making any special terms, in a sheriff’s sale, a part of the reeord. The obvious justice of this case, arising from the universal uederstanding of all parties at this sale, together with the fact that it took place before any one of the parties knew of this law, has induced us to consider this as an exception to what we consider will be the rule hereafter, and as decided on the special facts which occurred — and which would govern any other case, depending precisely on the same facts.
Judgment affirmed