Klopp v. Witmoyer

43 Pa. 226, 1862 Pa. LEXIS 161

• Court: Supreme Court of Pennsylvania
• Decided: June 26, 1862
• Status: Published

Opinion

The opinion of the court was delivered, by

Lowrie, C. J.

We have not far to go for the rule of law that very obviously and conclusively rules this case. If this sale of John H. Witmoyer’s property had been made by one acting as his agent, without any appointment as such, and Witmoyer had afterwards given it the same amount of sanction that we find here, no one would have doubted that the sale would have been fully confirmed and ratified. And yet it was at the first void for want of authority.

Now, this sale was by the sheriff, as an agent or minister of the law, and we have declared it void, because he departed from the proper forms of the law in making it. The consequence is, that he must be treated as a mere unauthorized agent. He did sell that property as matter of fact, but the sale was void for want of authority from the law or from the owner. All it wanted was authority from one or the other. The owner did most abundantly ratify and confirm it afterwards, and that is equivalent to a full precedent authority.

There was no fraud in the case. The jury have so found under instructions in favour of the plaintiff that are quite as strong as the law allows. The plaintiff’s counsel have somewhat confused the different terms fraud, fraud in fact, and fraud in law, by not distinguishing the very different consequences that flow from each. The term fraud in law is not a very happy one, because it tends to this confusion of thought, and because it does not involve any idea of fraud at all, according to the common usage of the word. We think none of the assignments of error are sustained.

Judgment affirmed.