#### Carter, &c. v. Harris.

May, 1826.

Deed of Trust — Construction.—Where a grantor has conveyed all his estate, real and personal, to trustees, the conveyance includes equitable as well as legal rights, and the trustees are the proper persons to assert them, in a Court of Equity.

Sheriffs -Levy of Execution.--A Sheriff who is interested in an execution, cannot lawfully levy it himself.

Same Execution-Purchase by Sheriff.† Quaere, can a Sheriff selling property under an execution levied by himself, become the.purchaser, even if he is not interested in the debt?

Same -Sale by — Vacation of. — A sale by a Sheriff will be vacated, if he raises doubts, or makes impres •sinns unfavourable to a fair sale, and then buys in the property at an under rate.

Same- Same-Validity of. — Such a sale will be void, if the Sheriff is the only bidder, or there is another who only bids to give a colonr of fairness to the sale.

Appeal from the Eynchburg Chancery Court.

Carter and others, trustees for James Dickie, his wife Joanna, and their children, filed their bill against Benjamin D, Harris, stating the following case. James Dickie, by deed dated the 14th of July, 1819, and duly recorded, conveyed in trust to the plaintiffs, all his real and personal estate, and all debts owing to him, for the purpose of paying all the just debts of the said Dickie, and then of maintaining him and his wife, the education and maintenance of his children, &c. Some time before the execution of this deed, Dickie became indebted to Claiborne, and gave his note for $100, which was assigned to Benjamin D. Harris; on which the said Harris instituted a suit and recovered judgment, in March, 1819. Execution issued, *a delivery bond was taken and forfeited, and execution awarded on the delivery bond in May, 1819. The said Benjamin D. Harris, being then Deputy Sheriff of Nelson county, in order to remove the difficulty that would attend the levying an execution in his own favor, endorsed it to his father, Edward Harris, and then levied it on a female slave of the said Dickie, named Savory, whom he advertised, and purchased, at the day of sale, for about $120. The said slave was worth at least $400 or $500, and would have commanded that price, if she had been fairly disposed of. The sale is charged to be illegal and void, and the plaintiffs say that they are entitled to the said slave, on payment of the execution, interest, *&c. On*the day of sale, there were no real bidders present, and Harris purchased the slave at the price aforesaid, having procured a by-stander to make a nominal bid, in order, to give an appearance of fairness to the sale. The bill prays that the said sale may be set aside, upon the plaintiffs’ paying the sum due upon the execution, &c. and that an account might be directed of hire and interest, &c.

Harris answered, denying that the plaintiffs had any right to sue for his alleged injury; that it is true, that he directed the execution to be endorsed for the benefit of Edward Harris; and this was a fair bona fide transaction, intended to secure to the said Edward Harris, the proceeds of the said execution, to re-pay money which he had advanced for the defendant, to enable him to farm the Shrievalty: that the slave in question was sold at a public place, to satisfy two executions: that she sold for about $157, being the amount of both executions, and the defendant became the purchaser: that the sale was fair: and the girl was sold for as much, (as the defendant b Heves) as she would have brought, if sold at any other place in the county, under an execution, considering the great scarcity of money, &c. at that time.

Many depositions were taken, the material parts of which, are so fully stated in Judge Carr’s opinion, that it is unnecessary to insert them here.

*92*The Chancellor dismissed the bill of the plaintiffs, and they appealed to this Court.

Leigh for the appellants,

contended, that the endorsement of the execution, did not effect a transfer of the debt from B. Harris to E- Harris. It was still the property of B. Harris; and he could not, as Sheriff, levy his own execution. Fraud is distinctly proved by Perrow, and many corroborating circumstances. A Sheriff cannot purchase at his own sale, at all, in England; and whether this rule is strictly followed in this country, or not, yet any circumstances to prove unfair dealing, will certainly invalidate the sale.

Wickham, for the appellee.

Dickie, is no party to the suit. It is brought by his trustees, and the sale took place before the deed of trust was executed. If so, Dickie alone had a right to sue, and he could not transfer that right to any person whatever. It is said, the property was sold for less than its value; but this was produced by the state of the times, want of bidders, &c. The fraud is not sufficiently proved. Perrow is the only witness to that point, and he speaks doubtingly. None of the circumstances go to establish fraud. It is not ' proved, that there was only one bidder; and if it was, it is not necessary to the validity of a sale, that there should be more than one.

†

Fiduciaries purchase of Trust Fund. — As a general principle. It is well settled that trustees, agents, auctioneers and all persons acting In a confidential character, are disqualilled from purchasing the subject committed to them. The functions of buyer and seller are incompatible, and cannot be exercised by the same person without great danger of fraud. Snell transactions are constructively fraudulent, and are therefore voidable at the instance oi the beneficiary, although, if he chooses to recognise them, they are binding upon the trustee. Feamster v. Feamster, 35 W. Va. 1313 S. E. Rep. 57, quoting from 2 Min. Inst. 212, and citing the principal case. To-the same effect, the principal ca.se is cited in Hamilton v. Shrewsbury, 4 Rand. 431; *foot-note*to Buckles v. Lafferty, 2 Rob. 292; *foot-note*to Howery v. Helms, 20 Gratt. 2; Tennant v. Dunlop, 97 Va. 241. 33 S. E. Rep. 620: Smith v Miller, 98 Va. 541, 37 S. E. Rep. 10; Newcomb v. Brooks, 16 W. Va. 59. 63; Lewis v. Brown, 36 *W.*Va 1, 14 S E. Rep. 444.

May 12.

JUDGE CARR

delivered his opinion.

It was objected by the counsel for the appellee, that the trustees were not the proper parties'to file this bill, nor equity the proper forum. We must settle these points first.

By the deed of trust, it seems to have been intended to divest the grantor of all property, rights and credits, of *every kind. After a long and minute enumeration of the different articles of property, it adds, “with all the other estate,, both real and personal, of the said James Dickie.” This would convey, I presume, equitable as well as legal estate. The question raised by the bill, is, whether the sale of the slave was not so conducted, that a Court of Chancery would pronounce it invalid, and the purchaser, a trustee for Dickie, holding the property subject to redemption, by payment of the amount of the executions. In this point of view, it seems a question of property, which the trustees are the proper parties to litigate. Nor do I think the objection to the jurisdiction of the Court, well founded. Though it be true, as was contended, that the Sheriff might have been sued for the fraud, that does not seem to take from the party aggrieved, the power of waiving such suit, and coming into equity to redeem the slave. This is the every day jurisdiction of that forum. The books are full of such cases; ,and it is much the most favourable course for the defendant, as it ensures to him, if the sale should be set aside, the payment of the executions, with their interest and costs, without further delay or litigation.

Upon the merits, the first question seems to be, was Harris interested in the execution? If he were, there need no authorities to tell us, that he was not the person to levy it; to sell and to buy under it. Sheriffs are confidential and highly responsible officers of the law. They are the trustees and agents, of both plaintiff and defendant; not selected by them, but imposed on them by the law; and therefore, for the honor of the law, and the purity of the administration of justice, it is vitally essential, that their conduct should be watched over with a vigilant and jealous-eye. This is the more necessary, as their office clothes them with great power, and is constantly assailing them with strong temptations to abuse and pervert that power to sinister and selfish purposes. To-permit them to wield the process of our Courts, in their own cases; to cut and *carve for themselves; to exact such measure of justice, as self-interest. might dictate; would lead to oppression and abuse; would tend to subvert the foundation of private rights, and cover with deserved shame the ministers of justice. The defendant seems to have felt somewhat conscious of this; for, we see that the first execution, (while the debt was confessedly his own,) was levied by the' High Sheriff; and before he would take the second into his own hands, he directed the clerk to endorse it for the benefit of his-father.

Was the debt really and bona fide, transferred to his father, by this endorsement? I confess, I rather think that it was not. The whole case shews, that the execution was the property of Harris, up to the time of the endorsement. The bill-charges this act to have been a mere sham, to enable the defendant to take the levying- and sale into his own hands. In reply, the defendant says, that the transfer was-not. a sham, but a real transaction ; the purpose of which was, to secure to his father the proceeds of the execution, to re-pay money which his father had advanced, to enable him to farm the Shrievalty.

In the first place, this seems to me to be one of those substantive and affirmative allegations, which a defendant ought to prove by something more than his answer. If he was the owner of *he execution, it disqualified him to act. When this act is-questioned, can he support it by the mere endorsement, and his own evidence that it. was bona fide? We see no vestiges of a contract between him and his father, neither prior nor subsequent to the endorsement. We see no evidence that his father had advanced him money to- farm the Shrievalty; and I think it was his place to have furnished us this evidence. He declared to Perrow, on the day of sale, that the execution under which he was about to sell, was his own ; and that he must bring it to-a close, for he wanted his money. He dealt with the execution, in every respect, as owner, rather than as an officer, acting-for another. When be bought the negro, *it was for himself, not his father; and yet we hear of no settlement with his father since. There is no such allegation in his answer.

But, even if it appeared that the transfer was a real one, to satisfy a debt bona fide *93due to his father, I should, as at present advised, still think that he could not deal with the execution as Sheriff. He was still too much interested to oe that impartial and unbiassed agent, whom the law interposes for the protection of the rights of both plaintiff and defendant. He was still liable to his assignee for the debt, unless he made it by the execution. Nay, I am inclined to go even further; and though I do not mean positively to decide, I am free to state it as my impression, that a Sheriff, who is selling property under an execution, though he has no sort of interest in the debt, cannot legally buy •of himself. I can find no decision of this point in our Reports; but all the analogies of the law are against It. It is well settled as a general principle, that trustees, agents, auctioneers, and all persons acting in a confidential character, are disqualified from purchasing. The characters of buyer and seller are incompatible, and cannot safely be exercised by the same person. Emptor emit quam minimo potest; venditor vendit quam máximo potest. The disqual - ification rests, as was strongly observed in the case of the York Buildings Company v. M’Kenzie, 8 Bro. Parl. Cas. 63, on no other than that principle which dictates that a person cannot bo both judge and party. .No man can serve two masters. He that it interested with the interests of others, cannot be allowed to make the business an object of interest to himself; for, the frailty of our nature is such, that the power will too readily beget the inclination to serve our own interests at the expense of those who have trusted us. Lord Eldon says, in ex parte James, 8 Ves. 337: “The doctrine as to purchasers by trustees, assignees, and persons having a confidential character, stands much more upon general principles than upon the circumstances of any individual case. It rests upon *this; that the purchase is not permitted, in any case, however honest the circumstances; the general interests of justice requiring it to be destroyed in every instance, as no Court is equal to the examination and ascertainment of the truth in much the greater number of cases.” To my mind, these principles seem to apply with great strength to the case of Sheriffs. 'They are appointed by-the law, for the important purpose of carrying the judgments of Courts into fair and impartial execution. Clothed with the power of the Commonwealth, they levy their execution on what property they please. They fix the time and place of sale. They cry the property. There are a thousand ways in which they may discourage bidders, without committing themselves. They can say to those who wish to buy, “nothing but the money will do.” They may even demand specie; while, if they bid themselves, there is no need of having a cent of cash. They can bid out the property to themselves, return the execution satisfied, and leave the plaintiff to get his money by legal measures. These are my impressions on this important and interesting point.

But, there are other objections to this sale. It is laid down in many cases, that if the plaintiff in an execution raise doubts or make impressions, unfavorable to a fair sale, and then avail himself of these impressions, to buy in the property at an under rate, the sale will be set aside. In this case, it appears that there was a general impression among those present, that the Sheriff was to buy in the negro, and Dickie was to redeem. Garland says, there were but: three or four persons at the sale. Montgomery says, he thinks there were four besides himself ; others say, there were several, speaking in general terms. Now Perrow says, Harris told him there was such an understanding. Garland says, that while at the place of sale, Montgomery told him, that he had no doubt there was an understanding between the parlies; and Clarkson says, that he had heard, (though he does not exactly know from what quarter,) 'x'that such an arrangement had been made. This evidence shews, that whatever was the foundation, such an impression was general among those present; and so far as Perrow’s evidence will weigh, that impression came probably from Harris; for, he says that Harris told him so. This, though of itself, it might not form a decisive objection to the sale, certainly adds to the others.

But there is yet another objection. No person, I presume, would contend, that if the Sheriff were the oply person at the sale, or the sole bidder, he might make a single bid, knock out the property, and support this as a valid sale. Such a proposition would contradict the whole tenor of the law, which has provided so anxiously for the publicity of the sale : would arm the Sheriff with a power truly tremendous; would subject the whole personal property of every debtor in the Commonwealth, to his grasp; and is, indeed, a position too monstrous to be debated. How was the fact in this sale? The Sheriff and Perrow were the only bidders. Perrow did not bid, till called on by the Sheriff; and then merely (as he says in his deposition,) to make a sale, without the intention or the power to purchase; and this known to the Sheriff. Was not the Sheriff, then, in truth, the only bidder? Unquestionably.

I am, therefore, clearly of opinion, that the decree should be reversed; the sale set aside; the cause sent back for an account, in which the Sheriff should be charged with the hires of the slave, and credited by the amount of the executions, interest, and costs at law ; that the trustees be decreed to pay the balance, if any, appearing due, in a given time, such as the Chancellor may direct; and if so paid, that the assignee be decreed to deliver the slave and her increase, if any, to the appellants; and in default of such payment, that there be a re-sale of the slave. And if it should appear from such account, that a balance of hire of the said slave is due from the Sheriff, the same, as well as the said slave and her increase, shall be decreed to the appellants.

* JUDGE GREEN.

Without determining or giving any opinion upon the question, whether a Sheriff can purchase property sold under execution by himself, I think it clear, that *94he cannot acquire an irredeemable title by such a purchase, unless it appear that his conduct has been perfectly fair, and with a view to procure the best price. In this case it appears that a pretty general impression prevailed among those who were present at the sale, (an impression which is traced, in part at least, to the Sheriff as its author,) that Dickie was to be permitted to redeem the slave, if purchased by the Sheriff; which was calculated to damp the biddings, and to sacrifice the property. Upon this ground, I concur in the decree proposed.

JUDGE CABELL concurred in the principles contained in JUDGE CARR’S opinion; and the decree was reversed, and one entered up, in pursuance of the foregoing principles.*