#### *John Simonton et al.*v. *Jonathan Davis et al.*

Columbia,

May, 1850

Where sheriff’s sales of several tracts of land of an insolvent debtor were pro-' cured by the interference of a party who himself purchased the lands at inadequate prices, after, by his conduct and conversation, having produced a public impression that the sales were for the benefit of the judgment creditors — that he was their agent, as well as the agent of the debtor — that the sales were nominal, and only to make titles through the agency of the sheriff for prices to be, or already procured privately and on time, the Court confirmed such sales as were afterwards made apparently in accordance with this impression, and ordered the proceeds, sought to be appropriated by the party, paid over for the benefit of the creditors; and set aside the sheriff’s sales and ordered re-sales of the other tracts to be made by the commissioner, also for their benefit.

*Before*Dunkin, Ch. *at Fairfield, July Sittings,*1849.

The following Circuit decree contains a sufficient statement of the facts of the case.

Dunkin, Ch. It is proposed to do little more than to state the judgment of the Court upon the points submitted. A history of the transactions which gave rise to the litigation, must be learned from the pleadings and the evidence. It may suffice to say, that Dr. James B. Davis and Wm. K. Davis, although owning very considerable estates, were embarrassed to manifest insolvency in the year 1845. Their father, Col. Jonathan Davis, was the proprietor of an independent estate, and became involved in pecuniary difficulties about that time, only in consequence of debts which he incurred as surety of his sons. It was not supposed, however, at that time, or even so late as the early part of 1846, that the embarrassments of Jonathan Davis amounted to insolvency.' It *134was hoped by him and his friends that, by a judicious sale of the property of his sons, the debts for which he was surety might be satisfied, and, perhaps, $20,000 saved from the wreck of his own fortune. In consequence of the multiplicity and variety of liens, there was great difficulty in making good titles to the property of James B. Davis and William K. Davis, except through the agency of the sheriff, and great hazard that, at such sale, the property would be sacrificed. To meet and obviate these difficulties, an agreement was made on the 3d day of March, 1846, which is filed as an exhibit with the answer of Nathan H. Davis. This paper is signed by Jonathan Davis, and by many of the judgment creditors of James B. Davis and William K. Davis, and, among them, by some of the complainants. It was stipulated, among other things, that the property of James B. and William K. Davis should be sold by the sheriffs of Richland, Newberry and Fairfield, the personalty on a credit of one and two years, and the realty on a credit of one, two, three and four years. Messrs. Caldwell & Goodwyn were appointed to receive the proceeds of the sales from the several sheriffs, and appropriate the same according to law. It was also stipulated that the agreement should be binding only in case it was signed by all the judgment creditors. Some difficulty was encountered in this last particular, and the defendant, Nathan H. Davis, was very active and efficient in bringing it about, and afterwards in carrying the agreement into effect. It is stated in the answer of Jonathan Davis, and so appears from the testimony, that, alth mgh some few inconsiderable minor judgment creditors had not signed the agreement, it was, nevertheless, acted upon by the parties. It was agreed, (says Col. Davis,) at the previous meeting in Columbia, to sell *“*all Jas. B. Davis’s and Wm. K. Davis’s” lairds, as soon as practicable, at credit sales, and defendant understood his son, Nathan H. Davis, “ was nominated as the agent of the judgment creditors, to cause the sheriffs of the different districts, in which the lands were situated, to advertise said lands, so that (says he) defendant neilher caused such sales by himself or his agent.” Under the terms of the agreement, sales to a large amount, both of real and personal estate, were made by the sheriffs of Richland and Newberry districts. So far as the Court can percpive, the property commanded fair prices, and, *whether*it did or not, there seems to be nothing to impeach those sales, if; indeed, they are specifically called'in question. These sales seem to have been made in March, 1846. The real estates of James B. Davis and William K. Davis, situate in Fair-field district, were sold by the sheriff of that district, under circumstances to be hereafter detailed, in May and July, 1846, for cash; The whole of the real estate was purchased *135by the defendant, Nathan H. Davis. The Home tract, belonging to William K. Davis, and which he had sold to A. K. Calhoun for $4,900, was knocked down to N. H. Davis, for $105. The Owens tract, sold as the property of James B. Davis, was bid off by N. H. Davis for $5, and his bid transferred to Dr. T. F. Furman for $1,500. The White House tract, belonging to J. B. Davis, ior which complainants offer by their bill ten thousand dollars, was-bid off by N. H. Davis for $1,000. Three other tracts of land belong.ing to J. B. Davis, were bid off by N. H. Davis, at nominal or comparatively inconsiderable prices, and the bids transferred to his co-defendant, J. C. Furman, who is the son-in-law of Jonathan Davis. The White House tract was conveyed by N. H. Davis to J. C. Furman, in trust for Mrs. Davis, the mother of N. H. Davis, and her family. The Home tract of William K. Davis, bid off by N. H. Davis, was afterwards sold by him to J. J. Welsh, whose notes, given for the purchase money, defendant, N. H. Davis, by his answer, “insists are in his hands, free from any claim of W. K. Davis, or his creditors, and he claims the right to apply the notes according to his own discretion, or according to his own interests.” The bill asks that those purchases by N. H. Davis should be declared either to be invalid, or made for the benefit of the creditors of James B. Davis and Wm. K. Davis. It was sufficiently proved that the property which was thus purchased by Nathan H. Davis for about $1,600, was worth more than $20,000. But the complainants rely on additional circumstances, which can be properly stated only by reciting the evidence of the witnesses.

*Dr. Thomas F. Furman*testified that he bargained with Col. Jonathan Davis, for the Owens tract in March, 1846. Col. Davis came to witness’s house and proposed to sell the Owens tract; 'he said he was authorized to act under some arrangement of large judgment creditors in Columbia. Object was to get as large a price as possible, by getting some one to make private sale on credit; payments were to be in four annual instalments. He offered the tract for $1,800; witness agreed to give $1,500, but required sheriff’s titles ; witness understood the land was then under levy. Col. Davis said there would be no difficulty, as the land would be sold in that way; he said he thought no one would overgo that sum, and, so far as he could, the sale was made by him. It was understood that if the land was bid off within $1,500, wituess was to be the purchaser. Dr. James B. Davis had purchased this land at Owens’s sale. Col. Davis wished witness to be present at the sheriff’s sale, but if he was prevented, he, Col. Davis, would purchase for him at any price within $1,500. Witness attended at the April sale-day, and saw Col. Davis; he told, witness the sale would not take place on *136that day, as there was some difficulty in the sheriff’s office; , requested witness to return the next sale-day, when he 'thought there would be no difficulty. Witness attended in May, but did not reach the Court House till a little afternoon ; met Nathan Davis, who told witness he had purchased that land ; asked the price, replied $5. Witness remarked, he regretted he had not been earlier, as he would have preferred to have bid himself, so that the price which he was to give ($1,600,) might appear as the consideration in the sheriff’s title. Nathan Davis replied, he could arrange that, as he would take the sheriff’s title, and then make a title to witness for the consideration of $1,500. Witness said he preferred the title directly from the sheriff, even at the disadvantage of stating the price at $5. Nathan Davis then said he would transfer the bid to him, and he could complete the arrangement which he had made with his father, Col. Davis. He transferred the bid. Some days afterwards Col. Davis and witness were at Winnsborough together. The sheriff made titles to witness, and witness gave to Col. Davis three notes, amounting altogether to $1,500; the notes were payable to Col. Davis. Witness paid the first note, and was enjoined by Col. Gregg, (complainant’s solicitor) not to pay the others. The notes were payable at the Branch Bank in Columbia, and there he paid the first note ; this note had been discounted. Nathan Davis told witness that this note had been passed to James M. Taylor, the assignee of the De Bardelaben judgment, who had urged the sale of the White House place. He told witness the second note was in the hands of the sheriff to pay costs, and that the third note was in the Bank. Witness produces the sheriff’s deed to him, which recites a purchase “by Nathan Davis, for Dr. Thomas Furman, for five dollars.” Witness put memorandum in the deed a few days afterwards, that he had purchased from Col. Davis for $1,500. Col. Davis told witness that the $1,500 was for the creditors, and that he was acting under authority of an agreement made by the creditors at Columbia. Witness supposed the sheriff would sell on a credit; don’t think he would have bid for cash. Col. Davis was not under any obligation to buy for him for cash ; it was some lime afterwards that he understood it was a cash sale. Witness did not understand that Nathan Davis had any interest, but it was bid off by Nathan Davis for witness, as he, (witness) supposed in- carrying out the agreement with Col. Davis, to wit, that he should bid for him if he was not present. Sheriff was present when the notes were given; thinks that he and Col. Davis came to Winnsborough together on the day of settlement. Mr. Stewart and Mr. McCants were present.

*Jeremiah Cockrell*was sheriff of Fairfield in 1846; levied on lands of J. B. Davis and W. K. Davis; sold three tracts to *137N. H. Davis, for $5 each; Little River tract, $500; Owens tract, $5; Steel tract, $5; Cato tract, $5; Home tract, White House tract, near Monticello, $1,000; the last July, 1846; all bid *off*by N. H. Davis. He was directed to make levy on these lands by a letter from Caldwell & Good-wyn, and particularly by Nathan Davis. W. K. Davis also spoke to him. Letter of Caldwell & Goodwyn produced in March, 1846. Nathan Davis came to witness’s office repeatedly to see him; he came to see him about the levy and sale of these lands. He insisted very strongly on the sale, and urged it upon witness till the sales took place. He gave as his reasons for pushing the sale, that the proceeds might be realized and a settlement made in Columbia. He insisted to have the land sold on credit; got Mr. McDowell to speak to witness ; he referred to the agreement, of which witness had received a copy from Caldwell & Goodwyn. Witness declined ; would not sell on credit. Nathan Davis still insisted on his proceeding with the sale after he refused to sell on credit. Witness was unwilling to go on with the sale; told Mr. Davis it was a bad season to sell, and that he saw no purchasers from that side of the district; none at all. Davis said he had been attending to the matter long enough; that he wanted to close the matter in Columbia, and he wished the sale to go on. No other person pressed him,. Mr. Stanton, an execution creditor, had been pressing, but he withdrew, and would not press; on that day declined to do so. Witness refers to both the sales; certainly that in May; thinks (though not so positive) in July also. Witness objected that Dr. Furman was not present, who, he understood, had purchased one of the tracts. Davis said it made no difference about Furman being present; that they only wanted the sales in order to make titles, and the sale which had been made previously would stand. It was witness’s impression, from the conversation with Davis, that this was the understanding in relation to all the lands sold by witness. Davis gave him no notice that he was bidding for himself; recollects none. Gave such notice to no one, that witness knew of; there were no creditors, no execution creditors present except Mr. Stanton, who seemed on that day to have no claim or interest in the sales. There were one or two others who bid a little on the W. K. Davis’s Home tract; no other bidding on any other tract but the bid of Nathan Davis. Witness saw Col. Davis and Stanton talking together; levies on three or four of the tracts were given by Nathan Davis; on one or two, perhaps, by W. K. Davis. After the sales witness received written directions from Nathan EL Davis as to the persons to whom titles were to be made; it was same day, or a few days after-wards; paper was produced, and is as follows: “Owens tract, 30U acres; titles to be -made to Dr. Furman. The others will *138be made to such persons as Col. Davis may direct. Bankable note) payable January next, to be left with the sheriff, will be to both parties claiming the money; right to be determined by order of the Court, and the note to be held by the sheriff until the Court so orders.”

(Signed) N. H. DAYIS.

*Cross-examined.*— Is not positive that the executions came with the letter of Caldwell & Goodwyn, but certainly a copy of agreement did ; also a list of cases, N. H. Davis and W. K. Davis came to the office and gave the levy; some of the creditors had not signed the agreement, and would not consent. Stanton was one, and he objected to a sale on credit. Nathan Davis tried more than once to induce witness to sell on credit. Simonton lives in Fairfield ; the land was sold as he usually sells. The impression that was abroad operated against the sale; cannot say there was any thing unfair in the sale ; the levy on the White House was by direction of James M. Taylor; thinks Ni H. Davis did not direct this levy. J. M. Taylor wrote to witness 9th June, 1846; levy 11th June; that and W. K. Davis’s tract sold in July; thinks N. H. Davis said nothing in July about selling on credit; proceeds-of the White House and Little River tract applied to De Bardelaben’s judgment, which was not paid in full. There was a difference between Taylor and Davis about this judgment. *(In reply.)*When he spoke of no unfairness at the sale, he referred to his own conduct. The impression had got abroad how the land was to be sold, and that deterred others. Witness did not wish to sell the White House tract; Nathan Davis insisted on his going on.

*J. B. McCants*had several conversations with N. H. Davis and W. K. Davis, about time of sheriff’s sales in April and May, 1846. It was mentioned by one of them that the times were hard, and the lands would probably be sold low, but that it would not make so much difference, as Jonathan Davis was still considered good; that the creditors had given lime; that if Jonathan Davis could get the lands he would sell them for their value, and that it would be for the benefit of him as well as the creditors. All was predicated on the idea that Col. Davis was good. N. H. Davis referred to the sale to Dr. Furman, as an illustration of what his father would do — spoke of the agreement with the creditors, and mentioned sale to Dr. Furman for $1600, to show what his father would do if some indulgence was extended here, as below; this was bet ore he bid on the Owens tract; never heard Nathan Davis or Col. Davis say they intended to bid for their own benefit.

*Cross-examined.*— Frequently heard of the agreement *by*the creditors as to the credit sale ; much talked of about the sheriff’s office. N. EL Davis was very desirous that the lands should be sold, and wanted .witness .to exert his influence. *139Up to May he has no doubt that N. Davis wished to have the sale on a credit; the embarrassments of Col. Davis very much, t on account of his sons.

*Thomas Stanton.*— Witness, as executor of Owens, held a junior judgment against J. B. Davis. He had a conversation with Col. Davis before the lands were sold here. He told ■ witness the lands would have to be sold at sheriff’s sales, but he intended to apply the proceeds to the payment of his debts. Witness attended the sales in April and May ; no land was sold in April. At the sale in May witness went to Col. Davis and said, if he did not do something for him in the case of his debt, he should make him pay as much for the land as any body else; that is, that he intended to bid for the land and run it up, and he would make him pay as much to some one else, as he would have to pay him. Col. Davis then told him if he would not bid on the land, he (Davis) would pay Gladney for the witness $400 next week, or he would sell him a negro. Joseph Gladney was buying negroes; witness would have bid but for this; he did not bid in consequence of what Col. Davis said to him. ' Witness heard a conversation that morning between Nathan Davis and Col. Cockrell. Sheriff said it was a mighty bad time to sell the land. N. H. Davis replied he did not care; he intended to buy the land himself. He also said it was the second or-third time he had been there, and the land piust be sold. It was on hearing this that witness went out and had the conversation with Col. Davis. Col. Davis had frequently before that time told witness of their arrangements. Col. Davis told him all the lands were to be sold by the sheriff in order to make good titles to those who purchased the land. He requested witness to call and see a man about buying the Owens tract at six dollars per acre, but the man did not take it. This was the land purchased by Dr. Furman. Witness understood Col. Davis distinctly that the price for which he could sell the lands was to be applied to the creditors, and said he hoped if “good sales were made, they would save from 12 to $15,000 to live upon after the debts were paid.” He had before that promised to pay witness $400.

*Cross-examined.*— At one time witness objected, in one sense, to give length of time to pay the money; went to see Col. Davis, at his request, in March; witness objected to give time. Col. D. offered to buy his execution; he then told witness of their plans, and he then agreed to pay witness $400 at the sales day in April. Witness came here at that time, expecting Col. Davis to pay the $400. Witness was not thinking of the sale.of the land; don’t recollect to have spoken to the sheriff till after the old gentleman (Col. D.) failed to keep his promise. Witness asked the sheriff if he should push the sale, or wait on Col. B. Sheriff told him Col. D. had, in *140a letter to him, promised to pay his execution. Witness is sure pe not ¡nsist on selling the land in May. Col. Davis told him in April if he pushed a cash sale he would never get a ¿|0}¡ar> Witness did not push by telling sheriff to sell the land; Col. Davis and witness were in the passage in a comer, on a bench. Col. Cockrell saw them; their conversation was not to be heard. Witness came in May to bid for the Owens land; witness had a man coming with the money — Dr. Furman, who told him to bid for the land, and not to let it go tinder $1500. Nothing passed between them as to cash or credit sale. Witness expected that Dr. F. would take the land at his bid ; witness had $150 at least in his pocket that day; he received it from B. Layton, Saturday before the sale. Joseph Gladney was straining on witness for $400, and witness wanted this money to settle it. It was near a month after the sale before he saw Col. Davis; had found out before that Col. Davis had not paid Gladney. Witness has brought a charge against Col. Davis in the church for not keeping his promise.

*D. B. Kirkland*was present at the sales in May and July, 1846 ; was standing in the Court House ; one tract was sold very low. Mr. Campbell came up and asked him if he knew why the lands were selling so low; replied he did not. Campbell then went away and returned, saying they were only selling to make titles.

*Ralph Jones*attended the sales in May and July, 1846. Witness made a few bids on W. K. Davis’s land ; bid $100 ; did not know the cause of it selling so low; continued to bid till it reached $100, then stopped and inquired of some person present the reason of the land selling so low; answered by some one in the crowd that the land had already been sold by Mr. Davis to Mr. Calhoun, and it was now sold only to make titles. Witness did not bid on any of the other lands.

*Edward G. Palmer.*— Was present at the sale in May, part of the time; was present when the first tract was put up at $500, and knocked down to N. H. Davis. Another tract at $5; witness was still more astonished, turned round, and said, “it is surprising, these gentlemen are said to be insolvent, and no creditors to bid up the property.” The person to whom he spoke observed, “ they were selling the property to make titles.”

*Major Lyles*(examined for defendants) was in Winnsbor-ough at sales of J. B. Davis’s lands. Three or four tracts were sold; witness saw them selling at a sacrifice; asked some one why they were sold so low ; Stanton was standing by, and said he had sold that to J. B. Davis for $1500, and he didn’t expect to get any thing for it Witness said, you ought to have bid for those lands ; his reply was, it would be of no use, for he could not have got them, or something to that *141effect. Witness said, you ought to have bid on them, and run them up, and you might have saved something. His reply was, that Col. Davis had promised to see him paid; does not recollect any other conversation.

*IB. McCants*(examined for defendants.) — The substance of his evidence is, that on the day of sale of J. B. Davis’s property, Col. Davis and Stanton were in his office; there was much conversation; Davis urging Stanton to consent to a credit sale, and Stanton, without replying to this, insisting on the fulfilment of a promise Col. Davis had made to him in regard to payment. The discussion continued till near the hour of sale.

The whole of the evidence in the cause is with the decree. The general principles by which this case must be adjudicated are sufficiently familiar. In contracts between man and man, mere inadequacy of consideration is not a sufficient ground for rescisión. If the inadequacy be so. great as to shock the conscience, it may afford evidence of fraud, and then the fraud vitiates the "agreement. But sheriff’s sales stand on a different principle, and are protected on grounds of public policy. No inadequacy, however startling, will authorize the inference of fraud — upon the same high principles, it has been held that such sales must be conducted with perfect fairness, and that no undue advantage shall be taken. '

It is, first, proper to inquire into the circumstances under which Sheriff Cockrell proceeded to the sales in May. His deed to Dr. Furman recites the execution of the Bank of the State, for $ 15,000, as his authority. This execution, and all the principal executions, were placed in his hands by Messrs. Caldwell and Goodwyn, and accompanied their letter of the 6th March, 1846. That letter directed a levy on the real estate in Fairfield District, and that it should be sold on the ensuing sale day, on the terms specified in the agreement of the plaintiffs in the executions, a copy of which agreement was enclosed in the letter. The terms of that agreement were a sale on a credit of one, two, three and four years; some of these executions were held by complainants in this bill, and the instructions, thus given, were their instructions. When Stanton, or any other execution creditor, declined to assent to a sale on credit, the sheriff may very well have hesitated in departing from the usual course. But what, then, was the obvious line of conduct for the sheriff to pursue 1 Unless some execution creditor, who was no party to the agreement,' insisted on pressing his execution, and by a cash sale, the sheriff should have stated his difficulties and waited for further instructions. Did any execution creditor whatever press for a sale in May? The sheriff positively swears that no one pressed, or instructed him to proceed, except N. H. Davis. There is no testimony whatever that *142Stanton, or any one else holding an execution, opposed the Remonstrances of the sheriff against a sale at that time, and under the circumstances insisted on by him. But, upon what principle and by what authority did N. H. Davis still insist that the sheriff should proceed with the sale, after the sheriff declined to sell on credit, and remonstrated against selling at that time for cash, or why did Cockrell listen to his instructions and act against his better judgment any more than the officious intermeddling of a stranger? If a stranger, accidentally acquainted with the instructions given by the plaintiffs to the sheriff, and conscious that they would depend on the observance of those instructions, had, nevertheless, induced the sheriff to press a sale for cash, without special notice to the plaintiffs, and, at such sale, had purchased property worth $20,000 for $1,600, it would seem very clear that such sale would be open to impeachment by the plaintiffs, and, perhaps, scarcely less clear that the sheriff would be liable, on his official bond, for any damage sustained.

But N. H. Davis was not such a stranger. His interference was *bona fide ;*and the sheriff may have been well warranted in obeying implicitly the directions of one who seemed to represent the interests of the plaintiffs in the executions, and who spoke as with the authority of one who had a right to instruct, and whom the sheriff was bound to obey; whether N. H. Davis *actually*had such authority is not very important, provided Cockrell acted under that impression, and such impression was produced by, and might well be inferred from, the conduct of N. H. Davis. If the sheriff was mistaken, he erred in common with others who had better means of information. Col. Davis, repelling any charge of fraudulent practices on the part of himself, or his agent, at the sheriff’s sale, as charged in the bill, says, “ it was the written contract of the judgment creditors, entered into at a previous meeting in Columbia,” to sell all James B. and Wm. K. Davis’s lands as soon as practicable, at “credit sales, and defendant understood” his son, Nathan Davis, was nominated as the agent of the judgment creditors, to cause the sheriffs of the different districts, in which the lands were situated, to advertise said lands, so that defendant neither caused such sales by himself, nor his agents, &c.

The testimony of Cockrell leaves it very clear that the cash sales in May were caused by the urgency of N. H. Davis; but he had no right to instruct but as the agent of the judgment creditors; he had no authority to insist on a sale by the sheriff on other terms than those prescribed by the agreement made at Columbia. Tbe creditors may well have understood, as Col. Jonathan Davis understood, that N. H. Davis was acting for them, and therefore appointed no *143other person to supervise the sales. The suggestion that Messrs. Caldwell and Goodwyn were so appointed, is not, warranted by the terms of the agreement. Their chief duty regarded the distribution of the funds to be received.by them from the sheriffs. But there is another view of the subject: if this extraordinary sacrifice of property, at the May and July sales, resulted from a general impression that the object of the sale by the sheriff was only to give a clear title to one who had already purchased, or to others who might purchase, and that the funds of the real estate *sale*would be applied to the benefit of the judgment creditors, and this impression was created, or knowingly permitted, by Jon. Davis and N. H. Davis, under the circumstances of this case, the Court is of opinion that the sales cannot stand, or must accrue to the benefit of the creditors. There is no doubt whatever that such impression existed, and there is as little that this was the cause of the low price at which the lands were sold. So say all the witnesses, Cockrell, Kirkland, Ralph Jones, Edward G. Palmer and others. The language of *Mr. Palmer*is very strong. He was accidentally present at the May sales; was astonished to sbe the first tract knocked down to N. H. Davis at $500, still more astonished when the second was knocked down to him at $5; he turned round and expressed his surprise, that these gentlemen were said to be insolvent, and no creditors were present to bid up the property : the reply was, “ they were selling the property to make titles.” *James Murphey*said that, an evening or two after the May sales, Col. Davis told him of what had taken place — among other things, that he had bid off the Little River tract at $500; and that he might have got the Little River tract for $5, as well as for $500; but that he had bid $500 at first bid and no other bid was made.

But was this false impression (if it were false) created or permitted by Jonathan Davis and N. H. Davis? On this point the testimony seems very distinct. *Stanton*says, that Colonel Davis frequently told him of the arrangement which had been made, and was urging him to consent to a credit sale. He told him the lands must be sold at sheriff’s sales, in order to make good titles to the persons who purchased the lands, but he understood from him, very distinctly, that the price for which he (Col. Davis) could sell the lands was to be applied to “the creditors.” But *Dr. Thomas F. Fir-man*says, that Col. Davis applied to him in March, 1846, to purchase the Owens tract belonging to J. B. Davis, saying, he was “authorized to act under some arrangement of large judgment creditors in Columbia — that the object was, to get as large a price as possible, by getting some one to make private sales on credit.” The land was then under levy, and the contract was made so far as Col. Davis could make it:' *144when the witness arrived at the Court-house, in May, the land had been knocked down to N. H. Davis, at $5; but the witness did not doubt that he was to have the land; that N. jj Davis had no interest, but had only bid to carry into effect the agreement between witness and Col. Davis, and he was neither mistaken nor disappointed. The title stated that N. H. Davis purchased for witness; the notes of witness were so made payable to Col. Davis, and the first was applied, as the Court understood, to the eldest unsatisfied judgment against James B. Davis; the second was deposited with the sheriff, to pay costs; and the third is in the Bank. After these sales, in May, N. H. Davis gave written instructions to the sheriffs, not only to make titles for the Owens tract to Dr. Thomas F. Furman, but that titles for the other tracts should be made by the sheriff to such persons as Col. Davis may direct. Mr. *McCants*said, that previous to the spring of 1846, he had several conversations with N. Davis and W. K. Davis, on the subject of the sales ; N. H. Davis said, among other things, that *“*if Col. Davis could get the lands low, it would be for the benefit of him and the creditors bothhe cited the case of the sale to Dr. Furman, as an illustration of what his father (Col. Davis) would do; this was before he had bid off that tract, (the Owens tract.) Witness never heard Nathan Davis, or Col. Davis say, they intended to bid for their own benefit.

When Sheriff Cockrell objected to proceeding with the sale, not only on account of the season, but that he saw no bidders from that side of the district, he also objected because Dr. Furman was not present, who, he understood, had purchased one of the tracts. Nathan Davis replied, “ it made no difference about Dr. Furman being present, that they only wanted a sale in order to make titles, and the sale which had been made previously would stand.” Witness’s impression from Davis’s conversation was, that this was the-understanding in relation to all the lands sold by witness. N. H. Davis gave witness no notice that he was bidding for himself; he recollects none; and no such notice was given to any other person, so far as he knows.

All this testimony seems to the Court to warrant the conclusion that the public impression in regard to the character of these sales, in May and July, was created by, or derived from, the conduct and conversations of Col. Davis and N. H. Davis, and that this was the natural inference. No one who was examined supposed that N. H. Davis was bidding for himself, except, perhaps, Thomas Stanton; and this brings the Court to the consideration of his evidence. He was no party to these proceedings. It has been stated that, as executor of Owens, he had held a junior judgment against James B. Davis, but he had accounted fully for his transac-*145fions as executor of Owens, and, by a decree of this Court, had been finally discharged. He executed a release of all ^ interest in the judgment, and tendered to Col. Davis a note which he had given as collateral security. This being declined, he destroyed the note, and, being sworn on his *voir*dire, he declared he had no interest. Stanton testified that, at the April sale’s day, he had declined to give his consent to a sale on credit. The sale was postponed; that, either on that day, or afterwards, Col. Davis promised to pay his judgment. He attended at the sale day in May, expecting to have this promise fulfilled. An altercation then took place between Col. Davis and himself, which is fully proved by Mr. McCants on his examination in behalf of these defend^ ants. Mr. McCants says Col. Davis urged Stanton to consent to a sale on credit; that Stanton evaded that, but insisted on the fulfilment of the promise; this was between nine and ten o’clock in the morning. Stanton still persisted in not waiving his consent to a credit sale, and the sheriff would not sell on credit without his consent. When the hour of sale arrived, the sheriff was unwilling to proceed with the sale for cash. According to the language of Stanton, the sheriff said to N. H. Davis, who was urging the sale, “ it is a mighty bad time to sell land,” to which N. H. Davis replied, “he did not care; he intended to buy the land himself — it was the second or third time he had been there, and it must be sold.” *“*It was on hearing this, (continued the witness,) that I went out and had the conversation with Col. Davis,” The conversation was, that he told Col. Davis if he did not do something for him, he would run up the land, and would make him pay as much to some one else as he would have to pay him. Col. Davis then told him, if he would not bid on the land, that he would pay Gladney, for him, $400 the next week; or he would sell Gladney a negro. Gladney was purchasing negroes at that time, and was straining on witness for a debt of $400 which he owed him. Stanton says he would have bid but for this promise. In reply to a question of the defendants’ counsel, the witness said, that he had brought this matter before the church, when Col. Davis afterwards omitted to pay Gladney, and that Col. Davis had been acquitted. *Major Lyles*was examined by the defendants, to prove that Stanton had given a different account of this conversation. His evidence has been already detailed, and appears to the Court rather to confirm Stanton’s evidence, so far as the consistency of his declarations is involved. It may have been the purpose of Colonel Davis, at that time, to get the lands low, so as to enable him to make good titles, and, afterwards, sell them out at private sale, at fair prices, for the benefit of the creditors, and ultimately, therefore, for his own benefit. If that was his purpose, subsequent events *146seem to have changed it. But, be that as it may, it is very clear that creditors are not bound by a sale of property effected under such circumstances. Nathan Davis bid off every tract that was sold, and directed the sheriff to make titles, according to the instructions of Col. Davis. The name of the Rev. J. C. Furman, the son-in-law of Col. Davis, was substituted as purchaser, except for the Owens tract, bid off for Dr. Thomas F. Furman ; the Home tract sold to J. J. "Welsh, and the White House tract, for which titles were made to N. H. Davis, who conveyed the same to J. C. Fur-man, as trustee. This latter tract was bid off at the July sales.

The Rev. J. C. Furman is a party defendant. In regard to the White House tract near Monticello, he says, *“*that the title was made by N. H. Davis to him as trustee for Mrs. Rebecca Davis, (the wife of Col. Davis) to be disposed of by her will, and in default of such disposition, to her two younger children, Mary G. Davis, and J. Banyan Davis that the land “ was sold by the sheriff of Fairfield district, and bought by N. H. Davis. The deed was made to defendant as trustee by N. H. Davis, in view of his leaving the country ; this is the whole of the transaction as far as defendant knows. If there was anything fraudulent or illicit in it, he was not, and is not now informed.” In regard to the other tracts, his answer says, that he holds titles in his own right on three of the tracts, and as trustee of Mrs. Davis, for the fourth ; that, after he had the titles in his possession, he learned that there were complaints made respecting the sale and purchase of these lands, and that, in December, 1846, Simonton, one of the complainants, spoke to him, and alleged his misapprehension of N. H. Davis’s design in bidding, as a reason why he did not himself bid for the land. Defendant replied, that if that was really the case, he would not take advantage of the ignorance of other persons to gain a bargain, and that he would apply the proceeds of these lands to the benefit of Jonathan Davis’s creditors. Defendant then proceeds to state what he afterwards did, and in what manner, or on what account, he was prevented from completing his purpose.

The Court is of the opinion, that all the purchases made by N. H. Davis at the sales of the sheriff of Fairfield district in May and July, 1846, except that of the Owens tract, and that of the Home tract, (belonging to W. K. Davis,) must be set aside and annulled, and that the notes of Dr. Thomas F. Furman (unpaid) must be applied to the payment of the creditors of Dr. J. B. Davis, according to their legal priorities; and that Nathan H. Davis must account to the creditors of W. K. Davis according to their legal priority for the notes of J. J. Welsh, or their value.

In October, 1846, Col. Davis made a general assignment of *147his estate to Benjamin D. Boyd, in trust for the payment of debts; the Court perceives no ground to invalidate that assignment, or the sales made under it. The assignee submits ^ his readiness to account for his transactions, (a statement of which is filed with his answer.) This is matter of reference ; and so in regard to the judgment of Dr. Mendenhall. This, in the opinion of the Court, is not invalid, because taken to secure future advances made after the entry of junior judgments, and also as to the commissions charged by Dr. Men-denhall. As the amount due to him under this judgment will be matter of inquiry before the commissioner, such questions may be more fully determined on exceptions to his report.

There is nothing to impeach the debts of McMahon or of Kennedy, or to disturb the preference given to them in the assignment.

At the hearing, the complainants’ solicitor abandoned (and properly) any 61aim to the slaves given by Col. Davis to N. H. Davis, and which were afterwards sold under a mortgage executed by him, N. H. Davis. Nor is the gift made to Mary G. Davis in 1831, or January, 1832, open to any objection. But the gift of Amelia was in 1843 or 1844, after the debt to Dr. Mendenhall was contracted ; this slave must be considered subject to the provisions of the assignment, but the defendant, Mary G. Davis, is not responsible for hire, until after notice of this decree, nor to pay costs.-

*It is ordered and*decreed, That the purchases of the real estate made by N. H. Davis,'at the sales of the sheriff of Fairfield district in May, and July, 1846, (except of the tracts described as the Owens and W. K. Davis tracts) be set aside and annulled, and that the sheriff’s deeds for the same be delivered up, to be cancelled ; that the said lands be sold by the commissioner of this Court, on the sales day in January next, on terms to be fixed by a future order; and that the defendants, N. H. Davis, J. C. Furman and Jonathan Davis, account for the rents and profits since the sale.

*It is further ordered,*That N. H. Davis account for the notes of J. J. Welsh, received by him in payment of the W. K. Davis tract of land, and the same are hereby declared liable, in his hands, to the demands of the creditors of W. K. Davis, as before stated; and the notes of Dr. Thomas F. Furman, yet unpaid, are declared liable, in the same manner, to the demand of the creditors of James B. Davis.

It is referred to the Commissioner to state an account under the foregoing *orders, and also any*special *matter. It is also*referred to him to take' an account of the demand of Dr. Mendenhall, under the judgment recited in the pleadings, and also an account of the transactions of the defendant, B. D. Boyd, as assignee of Jonathan Davis, with liberty to the complainants to surcharge.

*148Finally, *it is ordered,*That the Commissioner publish a notjce to pie jU(jgment and other *lien*creditors of W. K. / Davis and J. B. Davis, to establish their demands before him on 0[. before the 1st Monday of December next, and that the Commissioner report on the same, and their respective priorities. Parties to be at liberty to apply at the foot of this decree for any further and necessary order.

From so much of the decree as sets aside the purchase of the White House, the defendants, Jonathan Davis and N, H. Davis, appealed, and submitted that the reasons which supported the decree against the other sales did not apply to the purchase of this tract. That the letter of Mr. Taylor to the sheriff, dated 9th June, 1846, showed that the sale could not be averted. That Cockerel did not positively charge N. H. Davis with interfering in this matter, and he positively denied it; and this purchase was free from the charge of gross inadequacy.

2d. But at all events, if thepurchase were set aside, the complainants were bound by their offer, distinctly made in the bill, to bid 10,000 dollars for the White House tract if re-sold, and the decree should not have ordered a re-sale without holding them to that condition.

3d. The defendants submitted by way of motion to the Court of Appeals, that the order directing an account should be enlarged, by authorizing the Commissioner to allow Nathan H. Davis, in his discharge, the purchase money actually paid to the sheriff; and to allow Jonathan Davis credit for his judgment against W. K. Davis, according to its rank.

Boyce, *Petigru*& *DeSaussure,*for the motion. contra.

*Curia, per*

Johnston, Ch.

The Court is satisfied with the decree setting aside the sale of the White House tract, and it seems to us so obvious that the sale was entirely owing to the interference of Nathan H. Davis, that it is deemed unnecessary to add any thing to the observations of the Chancellor in his decree.

But the second ground of appeal insists that the sale should not have been set aside, and a re-sale ordered, without holding the plaintiffs, (as a condition of the re-sale) to the bid of $10,000 made by them in the bill.

A sheriff’s sale, as this was, must stand if fairly made, whatever the price obtained for the property. This sale was not set aside, and could not have been set aside, on the ground that the plaintiffs offered a better bid. The doctrine of opening biddings, has nothing to do with the case. The sale stands exclusively upon grounds of fairness or unfairness in bringing it about; and so the Chancellor has held.

If the plaintiffs did not and could not entitle themselves to *149a rescisión of the purchase made by Nathan H. Davis,-by making a higher bid; and were, on the other hand, entitled to set it aside, on the other grounds stated in the decree ; it is difficult to perceive upon what grounds they should be held' to the offer made in the bill. It was altogether nugatory and ineffectual in procuring the decree which was made. Why then should it be annexed to the decree as a condition of it ?

The first question contained in the 3d. ground of appeal, (i. e.) whether Nathan H. Davis should not be allowed, in his discharge, the purchase money actually paid to the sheriff, may be raised before the Master, in taking the accounts ; and leave is given for that purpose, the Court reserving its judgment until the report comes in.

Upon the second question, in the same ground of appeal, the Court gives a like opinion. Mr. Jonathan Davis may bring his judgment before the Master, like the olher creditors of William K. Davis, and will be entitled to its benefit, or not, according to the merits of his claim. The Court will not prejudge it either in his favor or against him.

With these explanations, it is ordered that the decree be affirmed and the appeal dismissed.

Donkin and Dargan, CC., concurred.

*Decree affirmed.*