The opinion of the Court was delivered by
Kennedy, J.
The first error is an exception to the opinion of the court below, admitting the alias and pluries writs of venditioni exponas therein mentioned, with the returns thereon respectively made by the sheriff, to be read in evidence, without producing the record of the judgment and previous process, which was requisite in order to show that the same were legally issued. Though it was wrong to admit the writs in evidence here excepted to, without first showing by the record called for that they were regularly issued, yet the error was cured afterwards in the course of the [37] trial by the production and reading of the record in evidence to the court and jury.
The second error assigned is also an exception to the opinion of the court, admitting verbal evidence to be given of the contents of a written notice, alleged to have been given to the defendant below, that the property sold to him by the sheriff would be resold unless he paid the purchase money. No duplicate of this notice had been made, but the person who was employed by the sheriff to deliver it to the defendant was produced to prove the service and the contents of it. The proof thus offered as to the contents was objected to because it was secondary only, and therefore not admissible without showing first that a notice had been given to the defendant below, or his attorney, to produce, on the trial of the cause, the notice itself, which was the best evidence of its contents. No doubt every written instrument furnishes, when produced, the best evidence of its contents; and hence the general rule on this subject requires that the party who wishes to prove its contents must either produce it, or show that it is not in his power to do so; and if he cannot-produce it, because it is in the possession of the adverse party, he must show that he has given his adversary reasonable notice beforehand to produce it on the trial, otherwise he will not be permitted to give secondary evidence of its contents. But if the instrument, the contents of which are offered to be proven, be itself a mere notice, it forms an exception to the rule; for it is very evident that the application of the rule to such a case would put it out of the power of the party wishing to prove the contents of the notice to do so, as long as his adversary declined producing it on the trial; as the rule, if applied, would require the contents of a second notice given to produce the first, to be. proven by the production of the second in the same manner as the first, and so as to the contents of every subsequent notice, thus rendering the thing interminable. See Greenleaf’s Evidence 597; 1 Archb. Pract. 168; 2 Camp. N. P. Rep. 599; 3 B. & B. 288.
The third error is also an exception to the opinion of the court admitting the written conditions of the sale made by the sheriff, the plaintiff below, at which the defendant became the purchaser, to be read in evidence to the jury. The objection to their being read was, as alleged, that it did not appear that they were made known to the defendant, or that he had a knowledge of them in any way, either previously to. or at the time of the sale. This objection, however, does not seem to be well founded in point of fact; for evidence was given showing, first, that the conditions were read aloud by the agent of the sheriff at the opening of the sale; secondly, evidence tending to show, though not very strongly, that the defendant was present before and during the time of the sale; and, thirdly, direct evidence that he signed a written acknowledgment that he had become the purchaser of the pro[38] perty at it for the sum of $7050. This was certainly proof sufficient to warrant the reading of the written as well as the printed conditions of sale in evidence. But it being distinctly proved that the conditions offered in evidence were the same that were read and promulgated as such at the time of the sale, it is fair to presume, without more, that the defendant thereupon acquired a knowledge of them; and positive proof, therefore, of the fact of his having obtained such knowledge, was not necessary to be made, in order to enable the plaintiff below to read them in evidence.
The fourth error is, that the defendant below received no notice that a second sale of the property was to take place, nor of the time and place thereof. But the record shows that evidence was given to the court and jury, showing that he was required and notified by the sheriff, the plaintiff below, to pay the purchase money according to the 'terms of the sale, or otherwise the property would be resold at his risk. This notice, if any of the sort was requisite, was sufficient to put him on the look-out, so as to guard against the consequences of a resale, which could only be done by his paying the purchase money without delay. It was certainly not the duty of the sheriff to notify the defendant below of the time and place at which the resale would be made; it was sufficient, if not more than he was bound to do, to let the defendant know that unless he paid' the purchase money after it became payable according to his undertaking, a resale would be made at his risk; and this, as appears by the evidence, was done.
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The opinion of the Court was delivered by
Kennedy, J.
The first error is an exception to the opinion of the court below, admitting the alias and pluries writs of venditioni exponas therein mentioned, with the returns thereon respectively made by the sheriff, to be read in evidence, without producing the record of the judgment and previous process, which was requisite in order to show that the same were legally issued. Though it was wrong to admit the writs in evidence here excepted to, without first showing by the record called for that they were regularly issued, yet the error was cured afterwards in the course of the [37] trial by the production and reading of the record in evidence to the court and jury.
The second error assigned is also an exception to the opinion of the court, admitting verbal evidence to be given of the contents of a written notice, alleged to have been given to the defendant below, that the property sold to him by the sheriff would be resold unless he paid the purchase money. No duplicate of this notice had been made, but the person who was employed by the sheriff to deliver it to the defendant was produced to prove the service and the contents of it. The proof thus offered as to the contents was objected to because it was secondary only, and therefore not admissible without showing first that a notice had been given to the defendant below, or his attorney, to produce, on the trial of the cause, the notice itself, which was the best evidence of its contents. No doubt every written instrument furnishes, when produced, the best evidence of its contents; and hence the general rule on this subject requires that the party who wishes to prove its contents must either produce it, or show that it is not in his power to do so; and if he cannot-produce it, because it is in the possession of the adverse party, he must show that he has given his adversary reasonable notice beforehand to produce it on the trial, otherwise he will not be permitted to give secondary evidence of its contents. But if the instrument, the contents of which are offered to be proven, be itself a mere notice, it forms an exception to the rule; for it is very evident that the application of the rule to such a case would put it out of the power of the party wishing to prove the contents of the notice to do so, as long as his adversary declined producing it on the trial; as the rule, if applied, would require the contents of a second notice given to produce the first, to be. proven by the production of the second in the same manner as the first, and so as to the contents of every subsequent notice, thus rendering the thing interminable. See Greenleaf’s Evidence 597; 1 Archb. Pract. 168; 2 Camp. N. P. Rep. 599; 3 B. & B. 288.
The third error is also an exception to the opinion of the court admitting the written conditions of the sale made by the sheriff, the plaintiff below, at which the defendant became the purchaser, to be read in evidence to the jury. The objection to their being read was, as alleged, that it did not appear that they were made known to the defendant, or that he had a knowledge of them in any way, either previously to. or at the time of the sale. This objection, however, does not seem to be well founded in point of fact; for evidence was given showing, first, that the conditions were read aloud by the agent of the sheriff at the opening of the sale; secondly, evidence tending to show, though not very strongly, that the defendant was present before and during the time of the sale; and, thirdly, direct evidence that he signed a written acknowledgment that he had become the purchaser of the pro[38] perty at it for the sum of $7050. This was certainly proof sufficient to warrant the reading of the written as well as the printed conditions of sale in evidence. But it being distinctly proved that the conditions offered in evidence were the same that were read and promulgated as such at the time of the sale, it is fair to presume, without more, that the defendant thereupon acquired a knowledge of them; and positive proof, therefore, of the fact of his having obtained such knowledge, was not necessary to be made, in order to enable the plaintiff below to read them in evidence.
The fourth error is, that the defendant below received no notice that a second sale of the property was to take place, nor of the time and place thereof. But the record shows that evidence was given to the court and jury, showing that he was required and notified by the sheriff, the plaintiff below, to pay the purchase money according to the 'terms of the sale, or otherwise the property would be resold at his risk. This notice, if any of the sort was requisite, was sufficient to put him on the look-out, so as to guard against the consequences of a resale, which could only be done by his paying the purchase money without delay. It was certainly not the duty of the sheriff to notify the defendant below of the time and place at which the resale would be made; it was sufficient, if not more than he was bound to do, to let the defendant know that unless he paid' the purchase money after it became payable according to his undertaking, a resale would be made at his risk; and this, as appears by the evidence, was done.
The fifth error is an exception to the instruction given by the court to the jury, that a suit brought for the purpose of the present might be maintained by the sheriff in his own name. We are decidedly of opinion that the court was right on this point. It is in accordance with the opinion of this court as expressed in Adams v. Adams, (4 Watts 160), where it was not only held that such action might be maintained by the sheriff who made the sale, but that it could not be maintained by any other person. It is very important that sales made by sheriffs of property taken in execution by them, should be regulated by such principles as will tend to obtain prices therefor equal, if possible, to its full value, and at the same time to avoid all unnecessary delay in satisfying the executions. Every day’s experience, however, shows that the price obtained for property by a sheriff on a resale made by him, because the first or any prior purchaser has failed to pay the amount or price bidden by him for it, falls, not unfrequently, greatly short of the price bidden at the first or prior sale. But if the difference of price cannot be recovered by the sheriff from the first or prior purchaser, resales ought never to take place where the first sale has been fairly made for something like or near a fair price, and the purchaser is able to pay; because it is not profaable that the resale can be effected without occasioning a loss, at [39] least to the defendant in the execution, and perhaps to his creditors also. But if a resale is never to be made, when the sale is fair and the purchaser is able to pay, great and unreasonable delay may and indeed will frequently attend the recovery of the price bidden by the purchaser, which can only be obtained from him, when he refuses to pay, by means of an action commenced and prosecuted according to the ordinary forms of law. Besides, as resales seldom fail to depreciate the property, if it were to be held that the first or prior purchaser could not be made liable to pay' the difference between the price bidden by him and that obtained on the second or subsequent sale, it might and probably would tempt some one of the persons wishing to become owners of the property, to become the highest bidder at the first sale, with the intention of declining to pay the price so bidden, unless compelled by suit to do so, hoping thereby to force a resale, at which he would have the probable chance of getting the property at a reduced price; or, if bidden up on the purchaser at the first sale to the same or a higher price at the second sale, at which he again becomes the highest bidder, he may still refuse to pay, in hopes of forcing the property to a third sale, with a view of getting it ultimately for a much less price. No one can doubt that such conduct would be very unfair and highly reprehensible, and ought, therefore, not to be countenanced or sanctioned; neither ought any principle to be sanctioned that would, in practice, have a natural tendency to induce any, under an insatiable thirst for gain, though it produced the ruin of others, to pursue such a course at sheriffs’ sales, where the delay in obtaining the money directed to be levied by the execution might induce the plaintiffs therein to have a second, third, or more sales to be made, if necessary, until the price bidden by the last purchaser shall be prompt!3? paid without suit, which may save him from ruin by putting him in possession of the amount of his demand, but reduce the debtor to poverty and want by a sale of his property for less than the half, or even the.fourth part of its real value. Hence it would seem to be expedient, at least, for the benefit of creditors, frequently, that resales should be made, when the price bidden at the sale is not paid, as it ought to be; and at the same time equally expedient, as also most just, in order to protect the interest of the defendant in the execution, as well as his other creditors, that the first or any prior purchaser should be held responsible to the sheriff for the difference between the price bidden by him and any less price for which the property shall be ultimately sold. That the sheriff may maintain an action to recover the whole amount of the purchase money in his own name, when he seeks to perfect and carry the sale into effect, is not denied, but admitted ; and why 1 because the contract for the sale of the estate is made with him by the purchaser, and with him alone; and therefore it is that he or his representatives can alone maintain an [40] action for the breach of such contract. This being the case, then, why should he not have a like right, for a like reason, to hold a prior purchaser responsible to him for any loss that shall have arisen from a second or subsequent sale occasioned by his neglect or refusal to pay the purchase money bidden by him at the first or prior sale 1 The sheriff may very properly be considered as invested with a trust by law to sell the estate, which he has full power and is bound to perform, for the benefit not only of the creditors of the owner, but likewise for the owner himself; and in order to execute this trust for the benefit of all concerned, it is not only proper but necessary that he should have a like right to maintain such an action as the present, as if he were the legal owner of the estate.
The sixth error is, that the court left the fact of notice to the decision of the jury, without any evidence having been given in relation to it. This matter has been already sufficiently answered and disposed of in the discussion of the third error, and therefore requires nothing further to be said in regard to it.
The seventh and last error is an exception to the amount of damages recovered, which is alleged to be excessive. No such question as this appears to have been raised or made in the court below, neither does it appear that the court below gave the jury any direction in regard to it; so that there could be no exception to the charge of the court in this respect. Consequently, this court cannot take cognizance of it. If the fact were so, that the damages assessed by the jury were excessive, the only x'emedy for relief within the x-each of the defendant below was an application to the court, before judgment rendered on the verdict, for a new trial. But if we were to judge of the amount of the damages from all that appears in the case, it would seem that the jury in assessing the same allowed merely the difference, with perhaps some interest thereon, between the first and second sales. And seeing that no l-eason whatever has been given why the defendant below did not comply with his contract for the purchase, it is clear, therefore, that by his failure to do so he has caused a loss, equal to this difference, to the owner of the estate, and upon every principle of justice ought to make it good.
Judgment affirmed.