#### *J. W. Mathency & wife*v. *John M'Donald.*

The sheriff’s jailor, who, it appeared, had occasionally served process, but who was neither employed by him as a regular deputy, nor considered as such by others, bid off, at a sale by the sheriff, in the name of another, a lot of land for which he had previously bargained with the defendant in execution, at a stipulated price, independent of what it might bring at sheriff’s sale. After-wards being, or appearing -to be, unable to raise the purchase money, he directed the party whose name had been entered as purchaser on the saffs book, to make titles to the sheriff, who had agreed to take the bargain and pay the price agreed upon. The jury, with proper instructions, found the sale “null and void,” under the 59th Section of the Sheriff's Act of 1839, and the Court sustained their verdict.

*Before*Withers, J., *at Barnwell, Extra Term, Jan.,*1850..

The action was trespass to try the title to a lot of land in Barnwell. The plaintiffs sued as heirs at law of George Odum. George Odum died seized of the *locus in quo.*He left a will, it seemed, but died intestate as to the premises in question. His executor was George B. Odum. Against the *78latter a judgment was obtained, and execution lodged in the office of W. J. Harley, then sheriff, by one Peeples. The lot in question was sold by Harley under that execution, and if tjiat saje was valid, the defendant’s title was good, otherwise the plaintiffs were entitled to recover.

The sheriff sold the premises on the 1st Monday in August, 1842. At that time, and during the whole term of Harley, John Heath was his jailor. One Jeffcoate was the crier of the sheriff’s auction. John Heath said he bid off the premises in the name of A. P. Aldrich, who consented to allow his name to be used, with a view to have the lot settled to the use of his (Heath’s) wife and family; that previous to the sale he had made a bargain with George R. Odum, the defendant in execution, that he would pay $300 for the lot, no matter how much less it brought at sheriff’s sale, the sale of the sheriff being necessary to perfect the title. That on the occasion of the sale many persons were present who bid for other things, but he could not say whether there was any or what competition for the lot. He bid for it $100, and at that price it was knocked down to him. When he made the bargain with Odum, he said he expected to get the money from Harley, but on application, Harley told him (before the sale) he could not let him have it — and advised him to have nothing to do with the purchase. Yet he still entertained the hope he might be able to raise the money. He affirmed he bought for his own use exclusively, and not for Harley, directly or indirectly, and that when he made the arrangement with Odum, Harley knew nothing about it. Finding, after the sale, he could not raise the money, he said he directed Al-drich (whose name had been entered as purchaser in the sales book,) to make titles to Harley, who had agreed to take the bargain and pay the $300. Heath positively denied he was Harley’s deputy, or that he had ever done any act as such, except to pursue a fugitive from jail, who escaped from his custody.

*A. P. Aldrich*said he allowed Heath to use his name in the purchase of the lot, upon application to him in the street, provided he was not to be involved in any responsibility. Pie remembered something about a purpose to settle the property. He did not attend the sale. Knew of no one but Heath as concerned in it. Sometime afterwards Sanders (who was a clerk of sheriff Plarley,) told him Heath wanted him to make title to Harley, and upon a conveyance to him by Harley, he conveyed to Harley.

*George R. Odum*was examined for the defendant, and testified, in substance, that he made such bargain as Heath had represented, and knew no one else in the transaction ; had nothing whatever to do with Harley — and he had always told the plaintiffs that he had made the bargain with Heath. *79Heath was to pay him a part in cash, and on the occasion of the bargain Harley was passing not far off, and Heath said he would go and see whether he could get the money; — went' to Harley, and returning said he could not pay any of the money down — he did not remember any further arrangement between himself and Heath. Before that the negroes of his father’s estate were divided among the heirs, and the sheriff or commissioner pressing for something to pay debts, he thought the lots in question had better be sold, and deemed $300 a fair valuation. He remembered giving no levy on the premises to the sheriff', and did not know of the levy or sale till his arrival just after the sale, and on the same day, though he advised Heath to derive title through the sheriff’s office. He did not order the sale or a re-sale. A short time after the sale he- asked Harley if the $300 had been paid, as Heath had agreed, and Harley said he would have it fixed and applied to the judgment. The bargain with Heath, he thought, was made on the sale day in July, 1842. There was then nothing to pay debts, out of the possession of the heirs, but these premises and a plantation acquired after George Odum’s will was executed. He did not'make known to the heirs, before the sale, the arrangement with Heath, nor had any of them ever complained to him but J. W. Matheney 8 or 10 days after the sale. . '

*W.- J Harley*denied utterly all concern, directly or indirectly, in Heath’s bargain and purchase prior to the sale; affirmed that he never heard any thing about it, except that on the sale day in July, Heath applied to him for.an advance of the $300, he said he -was to give for the lot, which he (Harley) told him he could not spare, and advised him against the purchase. He pronounced the sale regular in all respects ;, it was duly advertised, he announced the property, Jelfcoate cried the sale, as usual, and Sanders, the clerk, made the proper entries. The levy on the lot in question was made on the sale day in July, 1842. , Heath failed to comply' and he (Harley) .paid the $300 ;'Heath told him to get a title from Aldrich, and he did. He could not tell how long after the sale this was done, but the entries were made when Peeples applied for his money. He said he did hot re-sell because Odum thought his bargain was a good one as made with/ Heath — no one was at the time pressing for the money — and he considered the sale made for the accommodation of Odum. He had never heard any complaints by the heirs of George Odum until they sued him for the premises. He denied that he had ever told any one that he had bought the lot at sheriff’s sale, and remembered no conversation with Major O’-Bannon about the matter. -He might have told him he owned the lots, but .not that he bought them from George ft. Odum or at sheriff's sale.

*80[Major O’Bannon had testified, that on one occasion, he knew not whether before or after the sale, Harley said to him that he had purchased three lots of Mr. George Odum, and asked him how they lay, and also said, “I have now papers in my possession showing how your father’s land lies.” He did not remember he said any thing about putting them up at sheriff’s sale. Col. B. H. Brown said, that on one occasion, he did not know whether before or after the sale, Harley told him he had bought the lots, and would not have done so, but that he owned property behind them.]

Harley said that Heath was his jailor, but not his deputy and never acted as such.

*Wilson Sanders,*Harley’s book-keeper, said :

the practice was that the date of papers was referred to the day of sale. I remember drawing the papers some time after the sale, at the instance of Harley, or of him and Heath. I would have done it at Harley’s sole instance. I think the titles were not made for a year or two after the $300 were credited.

The sheriff’s execution book showed the credit of $300 on the case of *Peeples*v. *George R. Odum.*

The plaintiffs adduced the writ book of Harley, which disclosed, between the dates of 17 and 19 March, 1842, service of some 18 or 19 sum. pros, by “J. Heath.”

Upon this disclosure the defendant became earnest to be allowed opportunity to shew that “J. Heath” was not the witness, and the counsel for plaintiffs consented to open that Question. Much evidence was accordingly received — but it left no doubt that J. Heath was the same who had testified— the jailor, Hea'th, being recalled, remembered, he said, nothing of this service, though he had, finally, a recollection of having once undertaken the service of a bail writ upon an emergency. He and Harley re-affirmed that he never was a deputy, and so said Sanders, the book-keeper. Two others of 6 or 7 who acted as deputies, testified that they never regarded Heath as a deputy. One of them spoke of a great press of business at the Spring term of 1842, and it appeared that the custom of the office, on such occasions, was to hand writs to any one going to a neighborhood where they were to be served, who was requested to serve them without any other authority than the request. (His Honor did not fail to express the hope, that such a scandalous mode of doing business would not henceforth be imitated in the sheriff’s office.) Harley said that if John Heath served *the*process, as indicated in the writ book, it must have been by request of the lawyers, for he never had authority from him; that to his regular deputies (ás he called them, 6 or 7 in number,) he gave authority in writing. It did -not appeár, (rather the contrary appeared,) that he ever had a regular deputy, according to the scheme of the Act of 1839. Sundry persons in *81his employment by the year, upon! wages, acted as such. There was no further evidence to shew that John Heath per-, formed any other function except as jailor.

Out of the foregoing facts the questions arose : -

.1. Was John Heath a depüty sheriff .by virtue of his employment as jailor ? I held that he ivas not, and so resolved ■ that question in favor of defendant.

2. Was he á deputy sheriff' ip July, when the-levy was made on the lot in question, or bn the first Monday in Au-when the same was sold and bought by him ?

.3. Did he buy for the use of sheriff Harley, directly or •indirectly, conceding that he was not deputy sheriff?'

-These two last questions were of course for the jury, and were to be decided with reference to the 59th section of the sheriff’s Act of 1839, which was before' the jury; and is, in the following terms: ■

“ No sheriff or deputy sheriff shall be concerned or interested, directly or indirectly, in the purchase of any property sold- by either of. them officially ;• and if any such, sheriff or deputy sheriff shall, be concerned or interested in-any such purchase, at any such.Sale, made by either of them, he shall, on conviction thereof, by indictment, be deprived of his office, and, shall be liable to be fined and imprisoned at the discretion of the Court,; and such purchase shall be null and,void.”-

The 8th section of the same .Act gives the sheriffs power to appoint “ *regular*deputies for whose conduct in office he shall be responsible,” and such are to be qualified-in the manner therein specified.’ By the same' section: “ every- sheriff may appoint such *special*deputies as the exigencies of his business may require, for whose conduct he Shall-be responsible, except in the case of a special deputy who may be appointed at the request of a party, his .agent or attorney, .and so expressed in the deputation.”

“ Sec. 10. 'The sheriff or his 'regular, deputy shall serve and return every process,-rule, order or notice, issued by any Court of record in this State, or other competent authority,” &c.

“ Sec. 22. The sheriffs or- their *lawful*deputies respectively, shall attend all the,Courts of Law and Equity,” &c.

“ Sec. 35. If. any sheriff or his deputy shall contract' for, buy or purchase any judgment or decree of any Court, which it may become his duty' to, enforce, or any execution lodged in his office,-or cause the same to be done, directly or indirectly, the said sheriff or his deputy shall forfeit” — treble the amount, &c. — and the judgment, decree or execution shall be *ipso*facto.satisfied.

The counsel for defendant contended that if Heath was in fact a deputy sheriff when he bought the lot, yet the sale was not void, because he did not. come within the letter of the law *82(vide above sec. 59,) since the property was not sold by Heath officially.

The Circuit Judge says, I instructed the jury thus: if Heath was a deputy at the time of the *levy*on-the lot or at its sale; (not as stated in the first ground-of appeal, at the time of a private *contract*made by Heath,) then I. thought the sale was within the true intent of the 59th section of the Act '; for though he may not, in terms, have made the sale officially, yet it was procured by him, and made for his purposes, as abundantly appeared from- his testimony, Harley’s, Aldrich’s, and George R. Odum’s. I stated that if a deputy procured a *levy*of property with a view to purchase at the sale by his principal, and then resigned, just to escape .the naked terms of the Act,'I should hold his purchase null aiid void.

But various other observations were made to the jury .not complained of in the grounds of appeal, for they favored defendant. '■ ’ .■■■'■

For example — They were told, that if Heath did no other acts as deputy, having no appointment as such, except those disclosed by the writ-book, between the 17th and 19th March preceding the sale; or if he was even appointed by Harley to serve those processes at that period, and thenceforth he re-máined-as he was before, jailor only, he should not be held to have been á deputy at the sale in August, or the .levy in July-much less if he‘ acted át the instance of members of the bar— or if, as seemed the habit of the sheriff’s -office, was conveniently picked up fora special occasion, and had no authority from any quarter; -

I also told the jury, that in a case where the sheriff had a retinue of deputies, or persons who acted as such, as appeared to have been Harley’s case; and one of them, attending the sheriff’s sale, bought property, with the levy orsale of which he had had nothing to do,. I aid not see any good -reason why such a purchase.should come under the condemnation of the law, since one favorite object of!the law .was to enlarge- and enliven the' competition at public forced sales. •

I did not myself think, though I cannot say how the jury viewed the matter, that the. question whether Heath was a deputy, was a controlling point in the cause. I conjectured that all which appeared on that subject rather operated in its ■effect upon the weight of the -testimony of Harley and Heath upon the' main question, (as I regarded -it) to wit: whether Harley was concerned, through Heath, in the levy .and sale, in order that he himself might acquire the premises. That question was submitted to the jury, as the leading- one, and upon the whole evidence. In.general, they were advised that the policy of -the law, as indicated in -the 59th section of the Act of-1839, was, one of high grade, touching the public interests and the. purity of the administration of *83the law, and in proper cases, (but in such only,) it should be faithfully applied. The 3d and 4th grounds of appeal relate, ^ as I apprehend, to the action of the jury upon-the facts involved in this turning point of the case — and I can only refer, for response to them,- to the evidence and the verdict.

The second ground presents a point, not raised or discussed before me, and of course not submitted to the jury. If the jury properly found what made the sale by Harley null and void, I do not perceive, if the question had entered into the cause, how the defendant would have derived more" virtue from the sale than existed in it.

The jury found a verdict for plaintiffs for the land in dispute, without any damages.

The defendant appealed, and moved for a new trial,” on the following grounds:

1st. Because his Honor charged the jury that if Heath, *who in private contracted with Odum for the purchase of the land in question,*was a deputy sheriff *at the time of so contracting, or at the time of the sheriff’s sale,*then the sheriffs salé did come within the purview of the-Act of 1839; whereas, it is submitted that the Act of 1839 *makes void such purchases only, by a deputy sheriff, cts are made by him of property sold by him in his official character ;*and that said' Act does not make void purchases made by a deputy *for himself, and on his own account, at a sheriff’s sale made by the chief sheriff,*who was not concerned or interested, directly or indirectly, in the said purchase.

2d. Because the Act of 1839 did not invalidate the title of the defendant, who was *a bona fide purchaser for valuable consideration, without notice.*

3d. Because the verdict is contrary to evidence *in this,*that *there was proof clear, positive and full,*that Heath *was not a deputy sheriff either at the time of contracting for the lot, or at the time of the sheriff’s sale.*

4th. Because the verdict is contrary to evidence *in this,*that *there was proof clear, positive and full,*that sheriff Harley was not concerned or interested, *either directly or indirectly,*in the purchase of the lots, either before or at the time of the sheriff’s sale, and that the contract to purchase, and the purchase, was made by Heath *[not a deputy) for himself and no one else.*.'

5th. Because the verdict is in other respects • contrary to evidence.

6th. Because the verdict is contrary to law.

*Bellinger Sp Hutson,*for the motion.

*Graham,*contra.

*Curia, per*Withers, J.

The' course which this case took upon the Circuit, and the grounds of appeal which bring it *84before this Court, make it necessary to advert to the 59th sectjon of the sheriff’s Act of 1839,-in these words: “No sheriff or deputy sheriff shall be concerned or interested in the pUrchase 0f any property sold by them officially; and if any such sheriff or deputy sheriff shall be concerned or interested in any such purchase, at any such sale, made by either of them, he shall, on conviction -thereof by indictment, be deprived of his office, and shall be liable to be fined and imprisoned at the discretion of the Court; and such purchase shall be null and void.”

The idea urged upon us is, that the sale by Harley, sheriff, was not one made by J. Heath, officially ; and therefore, J. Heath, conceding that he was a deputy sheriff, might buy at sheriff Harley’s sale. It is admitted that if Heath had sold officially as deputy, Harley could not have bought, for it would still have been Harley’s sale; but the proposition, e converso, is denied.

The language of the Act is plain and peremptory, that neither sheriff nor deputy shall be in any wise concerned in purchasing at a sale made by *either*of *them*officially. *It*cannot be made plainer than the words make it, that at no sale by the sheriff as such shall he, or his deputy, be permitted to make a purchase of the property sold, or be directly or indirectly interested or concerned therein.

This section cited must have such a construction as will give effect to its terms, and will, consistently with their reasonable import, suppress the mischief at which it was aimed. A great object of the law is to secure at all auctions, and of the section quoted, at judicial sales especially, full and fair competition. When a Court of Equity detects, among ordinary bidders, an agreement or combination, the effect of which to chill sa*e or st^e competition, no one .implicated will be allowed to derive any benefit from a sale so conducted. If a deputy sheriff were bidding, it would seem to be wrong in his competitor to deter him or drive him off. it was so -said in *Rowe*v. *Cockrell.*The policy of the law jg preventive as well as remedial. The danger of combination, the power of mischief, the temptation to fraud, al combine to vindicate the purpose of the law in excluding the sheriff and his deputies from the privilege of purchasing, directly or indirectly, at official sheriffs’ sales. The sale is forced — the defendant powerless to counteract — the contrivances will be hidden- — and the solicitude of the law giving power to extinguish the entire source of eviL is manifest in the broad scope of the language of prohibition, and the accumulated punishment levelled at a party convicted of the offence. We are not called upon to say whether in any case the concurrence of every one in interest may ratify the. forbidden transaction. Such an idea is thrown out by Ch. Harper in *85the case just referred to in Bailey’s Eq. It is not perceived, however, that a sheriff, or deputy, indicted under the 59th, section of the Act of 1839, could defend himself by proving that he was very honest in the transaction, that he paid a very full price, and that he exceeded a lively and fair competition. However true it may be that a fraud, technical or actual, implies the idea of some one defrauded, and however necessary that some one shall present the issue to enable the Court to act, we have in this case the complaint made by persons who prove that the fee of the land in question descended to them, and the fact is undeniable, that it rests in them yet, unless divested by the sale made by Harley as sheriff. If Heath was his deputy when he bought, through the mere nominal agency of Aldrich, he bought nothing, the sale was void, and the heirs of Odum, the plaintiffs here, are the owners of the fee as much as they, were before the sale. The only doubt felt by this Court is, whether the charge upon Circuit, treating of Heath upon the supposition that he was deputy, was sufficiently stringent against the defendant.

The course of the case, however, seemed to have left that inquiry in then-ear — the charge to the jury, if it produced any effect, was calculated to lead them to conclude that Heath was not a deputy, that he was only jailor — and if so, then the pivot of the case was, whether Harley- was directly or indirectly concerned or interested in the purchase made by Heath, through which defendant claimed right to the premises.

We have reviewed the testimony upon that subject; this opinion will not be burthened by its recapitulation; it was a proper question for the jury; there was evidence enough to-support their conclusion; and we are in no degree dissatisfied with it.

The motion is, therefore, refused.

Evans, Wardlaw & Frost, JJ., concurred.

*Motion refused.*