#### John Stockdale *v.*Jonathan Yongue.

Under two executions in favor of one Hugh Yongue, amounting in the aggregate to four hundred and fourteen dollars, twenty-nine cents, the sheriff of Fairfield levied on and sold “all the right and interest of Stockdale, the defendant in the executions (and the complainant in this suit) to a tract of land of two thousand acres.” It appeared that the complainant had no other property, and that his title to the land had been in dispute for many years, and was the subject of a suit pending at the time. The sheriff proposed to the defendant to divide the tract into several parts, and that upon defendant’s having a plat so made, he would sell in parcels, hut defendant did not do so, and the entire tract was sold and bought hy the present defendant at the sum of $160, and titles executed to him. Held, that complainant was not entitled to relief against the purchaser, on the ground of hardship, or oppression, or the inadequacy of the consideration paid for the land.

*Before DUNKIN, Chancellor, at Fairfield, July Term,*1838.

This case came up on a motion to reverse the decree of his honor chancellor Dunkin. The decree presents all the circumstances of the case, and the questions arising under them, and is as follows:

*4“ The object of this bill is to set aside a sheriffs sale of land. On the 5th January, 1825, two executions against the complainant were lodged in the office of A. Beaty, sheriff of Fairfield District, with orders to proceed immediately. Both executions were in favor of Hugh Yongue, father of the defendant in this suit. 'Both were in actions of slander; one for damages and costs, the other ‘for costs only, amounting altogether to #414 29. On the 26th February, 1825, the sheriff, by his deputy, levied on“ all the right and interest of the defendant (Stockdale) to 2,000 acres of land, more or less, adjoining lands of Gavin Thompson, Jonathan Yongue and others, on the waters of Little River.” The land was sold on 11th April, 1825, and purchased by the defendant Yongue, for one hundred and sixty dollars, to whom the sheriff executed titles on the same day. This bill was filed in September, 1833. The grounds on which the complainant’s counsel relied, were various irregularities in the levy, the gross inadequacy of the consideration, and misrepresentations of the defendant, together with the straightened circumstances of the complainant. Some evidence was offered as to a promise of the defendant to give up the land, if the complainant would refund the purchase money with the costs and charges. No charge of this character is made in the bill, and it was, perhaps, irregular to receive any testimony on the point. But no objection was made; and it was, in fact, unimportant. The promise or offer, was evidently made subsequent to the defendant’s purchase, and was purely gratuitous.

I think the question as to irregularities in the levy were probably disposed of by the opinion of the Court of Appeals in May, 1830. It was urged very strongly, however, that the complainant had other property out of which the execution might have been satisfied, and that tire levy and sale of the complainant’s interest in the entire tract, was so excessive, as to amount to oppression and fraud. On this point the sheriff testified, that knowing of no other property of the complainant, he had directed his deputy to make the levy: that some ten days before the sale, the complainant called on him as to the sale of the property: something was said about so much being sold for so small a sum. The complainant said, “ he had no other property from which he could raise the *5money.” Witness proposed to him to divide the tract into several parts and that he should have a plat made, and he would so sell. Witness thought he would do it, but nothing was done. No plat was made — the complainant attended the sale; others bid as well as the defendant, and the land was sold.

The rule on this subject seems to be well stated by the Chancellor in Woods v. Morrell, 1 J. C. R. 505. “ I have no doubt,” says he, “ of the value and solidity of the rule, that where a tract of land is in parcels, distinctly marked for separate and distinct enjoyment, it is in general, the duty of the officer to sell by parcels, and not the whole tract in one entire sale. To sell the parcels separately is best for the interest of all parties concerned.” But he proceeds to state “ that the circumstances of the case must be such as to justify the application of the rule.” • “ The plaintiff says he was present — he requested the sheriff to sell the premises by lots, and not in one entire parcel; but he produced no map or other description of the ground as laid out in lots.” There were other circumstances of irregularity in that case, but the Chancellor dismissed the bill — so, in this case, I cannot perceive that the sheriff could do more, if the complainant did Hot .afford him the means of selling in parcels as he offered to do. Neither the officer nor the crditor was in fault. It was said that the price paid by the defendant was not a fiftieth part of the real value of the land. But I think the principle is well settled, that mere inadequacy of consideration will not authorize the court to rescind an executed contract. It would be particularly mischievous to apply a different principle to sales made under judicial process. It is always in some sort, a matter of speculation, and is so regarded. The rule of *caveat emptor*applies. In one instance, our courts have compelled a purchaser, at sheriff sales, to pay for his own property which had been sold by the sheriff as the property of another person, 2 Bail. 418. Perhaps a more apt illustration may not be found than in the history of this case. The land had been in dispute between the complainant and the father of the defendant for many years. The contest had been prosecuted in the-courts since 1818, with various success. In the mean time, two suits in slander, between the two parties, were carried on, and had both been terminated a *6few months prior to the sale by the sheriff] in April, 1825. At that time the suit to try the title was still pending, and from previous as well as subsequent investigations, it was impossible to predict with any certainty the result of the controversy. No article could have a less determinate value than the right and title of the complainant to the premises then in dispute. It may not have been the part of a generous adversary to avail himself of this emergency — . and yet that is a matter upon which I can readily conceive, the defendant may have much to say. • On this point, it is neither the province nor the inclination of the court to decide. But it is not to be doubted, that the adequacy or inadequacy of the consideration, on which ground the complainant chiefly rests his claim for relief, depended very manifestly on a decision upon the title not made until some years afterwards ; and which might not peradventure have been so decided if the defendant had not rested secure in his son’s possession of the complainant’s title, if his own should prove insufficient.

It did not appear from the testimony that the defendant was guilty of any fraudulent misrepresentation. He has taken advantage of the chances of litigation: but unless some principle of this court has been violated, he cannot be deprived of it. The complainant’s case may be a hard one, but I am unable to discover any ground on which the court would be authorized to interfere for his relief.

The bill is dismissed.”

The complainant appealed in this case on the following grounds:

1. Because the levy was excessive, and the defendant took an unconscientious advantage of the complainant, and the inadequacy of price under the circumstances of the case, was of itself sufficient to entitle the complainant to a decree.

2. Because from the case made by the bill and answers and evidence in the cause, there was, if not moral fraud, at least legal, and therefore the decree should have been for the complainant.

3. Because the complainant was entitled to relief to some extent, and the bill at least should have been dismissed without costs.

The complainant also moved for leave to amend, by alleging *7the agreement, that complainant should have the land, was made before the sale.

*Thompson*& *Gregg,*for the motion.

*Clarke*& *M’Dowall,*contra.

Per Curiam.

The court concur in the decree of the Circuit Court. It is therefore affirmed, and the appeal dismissed.

David Johnson.

Wm. Harper.

Johnston, Ch. having been of counsel, gave no opinion.