Lessee of Weitzell v. Fry

4 U.S. 190

Opinion

Shippen, Chief Justice.

— There are two points of inquiry before the court and jury: 1st. Whether the proceedings upon the sale have been regular ? 2d. Was there such an act of fraud, unfairness or contrivance, at the time of the sale, as ought to vitiate the whole transaction ?

1st. It is alleged, on the first point, that there was no precept authorising the sale; and it is proved, that, on search, a regular precept has not been found in the treasurer’s office. We think, that a precept was necessary to support the sale; and that the paper which has been produced, was not a regular precept. But on the other hand, the sheriff swears, that he received a precept, signed by the treasurer; and it is not probable, that he would have sold an estate under a blank form. As therefore, the party has not the custody of the precept, and ought not to be made responsible for its loss ; the jury will consider, whether there is not sufficient evidence, to presume the existence of a regular precept, at the time of the sale.

It has also been urged, that there is no proof, that advertisements of the sale were posted up at public places ; but if the sale was a fair one, we regard this, as a very feeble objection. The act of making such advertise» ments,is the duty of the sheriff; it is a matter merely directory ; and unless an actual injury has been sustained by an omission, it would be hard, indeed, that it should affect the title of a bond fide purchaser.

(a)

2d. The chief ground of defence, however, is the allegation of fraud at the sale; and if Richeson did then attempt to get the land unfairly, he ought not to be allowed to benefit by his iniquity. It is always a mark, primó, facie, of unfairness, when a man who forbids a sale, or slanders a (itle, becomes himself the purchaser of the land. It is true, that Richeson might he bound to give notice of the commissioners’ deed ; but did he confine himself to giving a fair notice of the claim, without any sinister design, *2211 *or conversation or action, to depreciate the estate, and to secure it -1 for himself at an undervalue ? No, he employed another person, secretly, to bid for him, while he deceitfully threatened his own bidder, and seriously threatened every other bidder, with a law-suit. And wherever there is an appearance of fraud, the inadequacy of price, though not conclusive, in itself, to avoid a sale, affords an argument of great weight against a purchaser to whom the fraud is imputed.¹

Here, then, it is important, to remark, that from the special nature of the proceeding under the treasurer’s precept, the defendant had no opportunity of applying to any court for immediate relief : hut we do not hesitate to declare, that if a case were brought before us, under such circumstances, we should certainly set aside the sale.

It now, however, becomes the province of the jury to decide upon the evidence, whether Richoson’s conduct was fair and proper ; without a sinister view to get the land at an under price. If they think it was, the verdict will be in his favor. If they think otherwise, the defendant must prevail.

Verdict for the defendant. (b)

«) Where there is a more error of judgment, by public commissioners, in the construction of an act of assembly, without fraud, or a pretence for imputing fraud ; a sale by them, under the act, will not be vitiated, as against a bond fide purchaser, for a valuable consideration, without notice of any irregularity or omission on the part of the commissioners. King v. Stow, 6 Johns. Ch. 323.

Tried in the circuit court, Northumberland county, on the 17th of October 1800, before Shippen, C. J., and Brackenridge, J.

1 s. p. Carson’s Sale, 6 Watts 140; Swire v. Brotherline, 41 Penn. St. 135; Lewis’ Petition, 1 Pitts. 537; Tripp v. Silkman, 29 Leg. Int. 29; Erb’s Estate, 2 Pears. 160.