ORMOND, J.
The question, whether sales of land, by the sheriff under execution, are within the statute of frauds, is one of great moment, and of some difficulty. The publicity of these sales may remove some of the dangers from perjury to which private sales of land might be subject; but this is an argument [208]*208which would apply with almost equal force to ordinary sales of land by auction, which are confessedly within the statute. There would be some more plausibility in the argument, if the sale by the sheriff, ipso facto, divested the title to the land out of the defendant .in execution, and vested it in the purchaser; but such is not the fact. The purchaser, at sheriff’s sale, acquires no title to the land until he pays for it and obtains the sheriff’s deed, which the statute, authorizing the sale of land under execution, directs the sheriff to make, and which, when tnade, conveys to the purchaser the legal title of the defendant in execution to the land. [Clay’s Dig. 205, § 17; 218, § 70.] This is very conclusive to show, that the Legislature did not intend to withdraw sheriffs’ sales of land from the operation of the statute of frauds, but that such sales were to be evidenced in the same manner as other sales of land are required to be by that statute. Such has been the decision in other States on a similar statute, as shown by the citations of the defendant in error.
In Adams v. McMillan, [7 Porter, 73,] it was held, after a review of the authorities, that an auctioneer, upon the sale of land, was the agent of the purchaser; and that his writing the name of the purchaser on the memorandum of sale immediately on receiving the bid and knocking down the hammer, is a sufficient signing of the contract within the statute of frauds. The sheriff is certainly as much the agent of the parties in a sale of laird under execution, as an auctioneer in an ordinary sale by auction. All the reasoning which applies to the latter, acquires increased force when considered in reference to the former, as the sheriff is not only the agent of the parties, but the accredited officer of the law, acting under the sanction of an oath. Such being the case, we are very clear that the memorandum of the sale offered in evidence, if in fact made by' him at the time of the sale, was such a memorandum or note, in writing, of the contract, as would satisfy the statute of frauds. It contains all the necessary constituents of the contract — an accurate description of the land sold, the price to be paid for it, and the name of the purchaser; and would have enabled the purchaser, if, on'tendering the money, the sheriff had refused to execute a deed for the land, to enforce a specific performance in equity. This renders it unnecessary that we should consider the effect of the deed, subsequently tendered [209]*209by the sheriff as a memorandum, or note in writing, under the statute.
In the case of Adams v. McMillan, [7 Porter, 88,] already referred to, it was held, that, upon the refusal of a purchaser of lands, sold at public auction, to comply with his contract, the vendor had, as an incident of the contract of sale, the right to re-sell the lands by auction — that when the power of re-sale was one of the conditions of the first sale, the difference between the two sales would be the measure of damages. If no such power was reserved at the first sale, then the difference between the two wouid not be binding on the jury as the measure of damages, but would be fit and proper testimony to bé received by them as a means of attaining a correct conclusion, that both sales should be fairly conducted, &c.
As already observed, we are unable to perceive' any difference in this respect between sheriffs’ sales and other public sales of land at vendue. The decision, therefore, above quoted, applies to this case, and is, in our opinion, in point, as to the right of re-sale. [See, also, School Commissioners v. Aikin, 5 Porter, 169.]
Has the sheriff the right to maintain an action for the breach of this contract? Upon this point of the case, we have felt much' difficulty. An auctioneer has such an interest in the article entrusted to him for sale, as will enable him to maintain an action, for the purchase money against the purchaser, although the owner of the goods be known. This principle 'was first asserted in-the case of Williams v. Millington, [1 H. B. 81.] The Chief Justice, in the course of his opinion, says: “It is not a true position' that two persons cannot bring separate actions for the same' cause. The carrier and the owner of goods may each bring ac--tions on a tort; the factor and owner may each have actions on a contract.” And by the whole court, the action was held to be maintainable. [See, also, Coppin v. Walker, 7 Taunton, 237; and Coppin v. Craig, ib. 243.]
The sheriff, like the auctioneer, has not only an interest in the' thingsold and the proceeds to pay his commissions- and fees of office, but he has an interest and right to the proceeds of the sale,as the appointed organ of the law for that purpose, to enable him- - to obey its mandate and bring the proceeds into court. We do' not doubt that those for whom the sheriff acts, and who are interested in the- money to- be- recovered, may also maintain- the ac[210]*210tion; but, in practice, great, if not insurmountable difficulties would be encountered if the action were brought in the name of the plaintiffin execution. It would frequently happen that many persons, as plaintiffs in execution, would bo interested in the same funds; and, if not sufficient to satisfy all, the most embarrassing questions would arise in settling priorities of rights, as it would be necessary that each should sue separately. All these difficulties are avoided by considering the sheriff, as in fact he is, a trustee for the benefit of all interested in the fund. The money, when received by him, would be received in virtue of his official character, and for which he would be responsible as for money received by virtue of a sale under execution.
There is still remaining a question of considerable difficulty. It is whether the memorandum of the contract of sale, made by the sheriff, can be offered in evidence, when the action is brought in his name. In Wright v. Danah, [2 Campbell, 203,] the memorandum of the sale, relied on to take the case out of the statute of frauds, was made by the plaintiff, the defendant overlooking him and approving it. Lord Ellenborough held, that the agent must be some third person, and could not be the other contracting party.
In Fairbrother v. Simmons, [5 Barn. & Ald. 333,] the precise question we are now considering was presented, the memorandum being made by the auctioneer, and the suit being in his name. The court held that, although the auctioneer may be considered as the agent and witness of the parties, yet when he sues as one of the contracting parties, he cannot maintain the action by his own testimony.
Some doubt is thrown over these cases by the remarks of the judges in the case of Bird v. Boulter, [4 Barn. & Adol. 443;] but the question was not presented in that case. The action was by the auctioneer, but the memorandum of the sale was made, not by the auctioneer, but by his clerk, who was, by the court, considered as the agent of the purchaser for that purpose. The difficulty which seemed to press upon the court in regard to the cases of Wright v. Danah and Fairbrother v.
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ORMOND, J.
The question, whether sales of land, by the sheriff under execution, are within the statute of frauds, is one of great moment, and of some difficulty. The publicity of these sales may remove some of the dangers from perjury to which private sales of land might be subject; but this is an argument [208]*208which would apply with almost equal force to ordinary sales of land by auction, which are confessedly within the statute. There would be some more plausibility in the argument, if the sale by the sheriff, ipso facto, divested the title to the land out of the defendant .in execution, and vested it in the purchaser; but such is not the fact. The purchaser, at sheriff’s sale, acquires no title to the land until he pays for it and obtains the sheriff’s deed, which the statute, authorizing the sale of land under execution, directs the sheriff to make, and which, when tnade, conveys to the purchaser the legal title of the defendant in execution to the land. [Clay’s Dig. 205, § 17; 218, § 70.] This is very conclusive to show, that the Legislature did not intend to withdraw sheriffs’ sales of land from the operation of the statute of frauds, but that such sales were to be evidenced in the same manner as other sales of land are required to be by that statute. Such has been the decision in other States on a similar statute, as shown by the citations of the defendant in error.
In Adams v. McMillan, [7 Porter, 73,] it was held, after a review of the authorities, that an auctioneer, upon the sale of land, was the agent of the purchaser; and that his writing the name of the purchaser on the memorandum of sale immediately on receiving the bid and knocking down the hammer, is a sufficient signing of the contract within the statute of frauds. The sheriff is certainly as much the agent of the parties in a sale of laird under execution, as an auctioneer in an ordinary sale by auction. All the reasoning which applies to the latter, acquires increased force when considered in reference to the former, as the sheriff is not only the agent of the parties, but the accredited officer of the law, acting under the sanction of an oath. Such being the case, we are very clear that the memorandum of the sale offered in evidence, if in fact made by' him at the time of the sale, was such a memorandum or note, in writing, of the contract, as would satisfy the statute of frauds. It contains all the necessary constituents of the contract — an accurate description of the land sold, the price to be paid for it, and the name of the purchaser; and would have enabled the purchaser, if, on'tendering the money, the sheriff had refused to execute a deed for the land, to enforce a specific performance in equity. This renders it unnecessary that we should consider the effect of the deed, subsequently tendered [209]*209by the sheriff as a memorandum, or note in writing, under the statute.
In the case of Adams v. McMillan, [7 Porter, 88,] already referred to, it was held, that, upon the refusal of a purchaser of lands, sold at public auction, to comply with his contract, the vendor had, as an incident of the contract of sale, the right to re-sell the lands by auction — that when the power of re-sale was one of the conditions of the first sale, the difference between the two sales would be the measure of damages. If no such power was reserved at the first sale, then the difference between the two wouid not be binding on the jury as the measure of damages, but would be fit and proper testimony to bé received by them as a means of attaining a correct conclusion, that both sales should be fairly conducted, &c.
As already observed, we are unable to perceive' any difference in this respect between sheriffs’ sales and other public sales of land at vendue. The decision, therefore, above quoted, applies to this case, and is, in our opinion, in point, as to the right of re-sale. [See, also, School Commissioners v. Aikin, 5 Porter, 169.]
Has the sheriff the right to maintain an action for the breach of this contract? Upon this point of the case, we have felt much' difficulty. An auctioneer has such an interest in the article entrusted to him for sale, as will enable him to maintain an action, for the purchase money against the purchaser, although the owner of the goods be known. This principle 'was first asserted in-the case of Williams v. Millington, [1 H. B. 81.] The Chief Justice, in the course of his opinion, says: “It is not a true position' that two persons cannot bring separate actions for the same' cause. The carrier and the owner of goods may each bring ac--tions on a tort; the factor and owner may each have actions on a contract.” And by the whole court, the action was held to be maintainable. [See, also, Coppin v. Walker, 7 Taunton, 237; and Coppin v. Craig, ib. 243.]
The sheriff, like the auctioneer, has not only an interest in the' thingsold and the proceeds to pay his commissions- and fees of office, but he has an interest and right to the proceeds of the sale,as the appointed organ of the law for that purpose, to enable him- - to obey its mandate and bring the proceeds into court. We do' not doubt that those for whom the sheriff acts, and who are interested in the- money to- be- recovered, may also maintain- the ac[210]*210tion; but, in practice, great, if not insurmountable difficulties would be encountered if the action were brought in the name of the plaintiffin execution. It would frequently happen that many persons, as plaintiffs in execution, would bo interested in the same funds; and, if not sufficient to satisfy all, the most embarrassing questions would arise in settling priorities of rights, as it would be necessary that each should sue separately. All these difficulties are avoided by considering the sheriff, as in fact he is, a trustee for the benefit of all interested in the fund. The money, when received by him, would be received in virtue of his official character, and for which he would be responsible as for money received by virtue of a sale under execution.
There is still remaining a question of considerable difficulty. It is whether the memorandum of the contract of sale, made by the sheriff, can be offered in evidence, when the action is brought in his name. In Wright v. Danah, [2 Campbell, 203,] the memorandum of the sale, relied on to take the case out of the statute of frauds, was made by the plaintiff, the defendant overlooking him and approving it. Lord Ellenborough held, that the agent must be some third person, and could not be the other contracting party.
In Fairbrother v. Simmons, [5 Barn. & Ald. 333,] the precise question we are now considering was presented, the memorandum being made by the auctioneer, and the suit being in his name. The court held that, although the auctioneer may be considered as the agent and witness of the parties, yet when he sues as one of the contracting parties, he cannot maintain the action by his own testimony.
Some doubt is thrown over these cases by the remarks of the judges in the case of Bird v. Boulter, [4 Barn. & Adol. 443;] but the question was not presented in that case. The action was by the auctioneer, but the memorandum of the sale was made, not by the auctioneer, but by his clerk, who was, by the court, considered as the agent of the purchaser for that purpose. The difficulty which seemed to press upon the court in regard to the cases of Wright v. Danah and Fairbrother v. Simmons, was, that the liability of the purchaser should not depend upon the fact, whether the action was brought by the auctioneer or the owner of the goods; and that is certainly true. But the point under consideration in those cases, as in this, was not whether [211]*211the defendant was liable, but whether it was competent to establish that liability by the testimony of a party to the record. That is a question about which it is apprehended but little difficulty can be entertained. The sheriff, as plaintiff on the record, was liable for the costs of the suit, and had also a direct interest in the event of the suit, being entitled to a portion of the money sought to be recovered, and, upon well established principles, was incompetent either to testify orally to the jury in support of the interest he represented, or to give evidence of an admission or declaration made by him previous to the suit being brought, having the same object in view.
These piinciples are so universally recognized, that no doubt whatever could have arisen as to their correctness, but from the fact that the memorandum made by the sheriff would have been competent evidence of the fact of the purchase of the lands by the defendant, if the suit had been in the name of the plaintiff in execution, or of some one having an interest in the proceeds of the sale. Evidence, to be competent, must be so, not only as it regards the subject matter of the suit, but also in reference to the parties on the record. In Blann v. Beal, [5 Ala. 357,] a father brought a suit against the clerk of the county court for issuing a license to marry his daughter, under the age of eighteen years, without his consent. To prove the age of the young lady, he relied on a memorandum made by himself in the family register of births many years before. The court held, that although this memorandum would have been evidence of the facts recited in it, in a suit in which he was not a party, as a declaration ante litem motam, by one who knew the fact and had no motive to misrepresent it, that it was not evidence for him in a suit in which he was a party on the record. The principle of that case is the one involved in this, and is conclusive to show that the evidence was inadmissible in this suit.
It results from this examination of the cause, that the charge of the court was, in substance, correct, as the memorandum made by the sheriff was not evidence in this cause to take the case out of the statute of frauds; and the judgment is, therefore, affirmed,