#### *James B. Coleman*& *wife*v. *The Bank of Hamburg et al.*

Columbia,

Novr. 1848.

"Where unfair means have not been employed to prevent competition at Sheriff’s sales, inadequacy of price, however great, is no ground for setting them aside.

*Before*Dunkin, Ch. *at*Lexington, *June*/Sittings, 1848.

Dunkin, Ch. The facts of this case appear from the pleadings and the evidence, written and parol, which accompanies this decree. Certain points, however, seem to the *Court*sufficiently well established. At the sale of John G. Blewer’s estate, made, for partition, by the Commissioner in Equity, for Edgefield District, on the 5th April, 1837, the widow (now Mrs. Coleman,) and Peter Redheimer, became the purchasers of the real estate, and gave bond to the Commissioner ior the purchase money, secured by a mortgage of the premises. The land was subsequently divided between them. Several payments were made on the bond, and on the 26th of September, 1842, a meeting of the heirs of Blew-er was held at the office of the Commissioner, for the purpose of a final adjustment. The circumstances are fully detailed in the examination of James Terry, Esq. The amount due to Mrs. Blewer, in her own right, as widow of the intestate, and as guardian of her son, John P. Blewer, exceeded the amount of her purchase. Peter Redheimer, who had married a daughter of the intestate, and had also made several payments on his purchase, fell in debt about $1450. The other heirs had been fully paid, and the balance due by Redheimer belonged, says the Commissioner, to Mrs. Blewer, in her own “right, or as guardian of John P. Blewer; and at her instance, and by the agreement of Red-heimer,” says the witness, “the bond and mortgage were delivered to Mrs. Blewer, to enable her to demand and receive from Redheimer the balance due by him on said bond. They were delivered,” adds he, “ to Mrs. Blewer, as furnishing evidence of and security for the payment of the balance due by Redheimer, on 26th September, 1842.”

Prior to this settlement (as was proved by Robert Ilanlri-son, who had married another daughter of the intestate,) Mrs. Blewer had sold to her son, John P. Blewer, at cost, the land purchased by her, and had settled with him for his share of his father’s estate in this way.

Afterwards the widow of Blewer intermarried with the complainant, James B. Coleman, who thereby became entitled to demand and receive the balance due by Peter Redhei-mer. Redheimer having fallen into pecuniary embarrassments, and judgments to a considerable amount having been rendered against him, his property, real and personal, was *286seized under various executions, and sales were made by the sheriff, on the sale days, in August and September, 1843.— When the land was put up for sale, the complainant, Coleman> was present, and exhibited the mortgage, on which he about $>1500 was then due. The land was sold subject to the mortgage, and was knocked off to the complainant for one dollar. Some question is made in the pleadings in relation to the sale of the personalty, but it appeared, at the hearing, that the personal estate was sold for about its value, and that no advantage .would result from the pressing for a re-sale, and this matter was not noticed in the argument,-and will not be further considered by the Court.

2 Bos. & Pull, 59.

2 Rich. Eq. 374.

2 Com. 469.

Complainants, Coleman and wife, live about f of a mile from Redheimer’s, and complainant has a Saw Mill on his place, and there is also a Saw Mill on Redheimer’s. After the sale in August, 1843, Redheimer, who has six or seven children of his own, and some orphan children residing with him, was permitted by Coleman to remain on the place, and in January following, (1844) Coleman engaged his services by written agreement at $300 per annum, to superintend the place and carry on the Saw Mill, Under which agreement he has since continued — the lumber being shipped to Charleston and sold by the factor on account of the complainant, Coleman.

It is difficult to perceive on what ground the sale of the land to Coleman can be impeached. A crowd was present at the sale, the mortgage was handed about amongst them, and notice was given of the amount due on it. It is true that Redheimer was permitted to remain in possession of the premises. But since *Kidd*v. *Rawlinson,*it has not been doubted that even chattels, bid off at sheriff’s sales, may be permitted to remain in the possession of the defendant. The distinction is recognized in *iSm,ith*v. Henry, as well as in *Martin*& *Walter*v. *Evans.*It is not the voluntary sale of his property, by a debtor to one of several creditors, who permits him to remain in possession, and thereby implies some secret agreement; but it was a public and forced sale in which all had the opportunity of competition. The purchaser, at such sale, is protected, because, says Chancellor Kent, *u*though the goods were suffered to continue in the possession of the defendants, yet the transaction was necessarily notorious to the whole neighborhood, and the execution notice tO' the world, and the cases, being free from fraud, in fact, were, under these circumstances, free from the inference of fraud in law.”

Something was said about want of notice to the Bank of Hamburg, (the defendant) of the existence of this mortgage. But the Bank, like the rest of the defendants, are merely judgment creditors, and not mortgagees or purchasers. Even if it be held necessary to record a mortgage, taken under a *287judicial sale for partition, the defendants would derive no benefit from the omission to record this mortgage. Again, it, was said that the Commissioner, in his annual report, for June, 1843, had reported the case of Blewer’s estate to be “ settled.” This Avas only to inform the Court that the estate was no longer in his hands. But of whal importance is this to the defendants, whose debt was contracted on the 15th February, 1842?

Rice. Eq. 3.

The Court is well satisfied that the complainant purchased the equity of redemption at less than its value, but none of the witnesses of the defendants attribute, any fraud or improper conduct, at the sale, to the complainant. And since the case of *Stockdale*v. Young, and others to the same effect, it is too late to entertain the inquiry whether mere inadequacy of price will vitiate a sheriff’s sale; and it is worthy of remark that the other moiety, (J. P. Blewer’s) sold Sept. 1844, for $1500.

It is ordered and decreed that the injunction be made perpetual, and that the cost be paid by the Bank of Hamburg.

The defendants appealed, and moved to reverse or modify the decree of his Honor the Chancellor, and for a decree that the, said land be resold by the Commissioner of this Court, for the benefit of the defendants, as judgment creditors, and of the complainant, if it shall appeal that any thing yet remains due, and that he is entitled to the same, under said mortgage, on the folloAving grounds:

1. Because it did not appear on the hearing of said cause, that any balance remained due and not paid on said mortgage to J. Terry, Esq., at the time of the sheriff’s sale.

2. Because the said mortgage was never recorded, and could not, therefore, be set up against subsequent judgment creditors, without notice of its existence.

3. Because the Commissioner of the Court, at June term, 1843, made a report, stating that the case was settled in full, and that he had taken the receipt of the distributees, including" Redheimer and wife, in full of their respective shares.

4. Because the complainant, Coleman, by producing and exhibiting at the sheriff’s sale, the said mortgage, with an apparent balance, for a large amount, unpaid, Avas enabled thereby to purchase the land for one dollar, which was proved on the hearing to be worth five or six thousand dollars.

5. Because the said plaintiff, by his declarations and conduct at the sheriff’s sale,' induced persons, who were otherwise disposed to bid and purchase, not to bid — and the sale was therefore void.

6. Because the decree is contrary to the evidence and the law of the case.

Bauskett, for the motion.

Boozer, contra.

*288DargaN, Ch.

delivered the opinion of the Court.

In this case very little is necessary to be said, in addition to the views taken by the presiding Chancellor in his decree. It is as well to remark, that the manner in which th.e case .has been presented in the brief does not meet the approbation of this Court. All the evidence bearing on the questions raised in the grounds of appeal should be printed with the brief, which has not been done in this case.

Upon a careful *review of*the evidence, I perceive no reasons for impeaching the fairness and validity of the sale by the sheriff to the complainant. It is settled law, that where unfair means have no' been employed to prevent competition at sheriff’s sales, inadequacy of price, however great, is no ground for setting them aside. Whether wise or not, this is the law of South Carolina. While the stern policy of the law requires that the unfortunate debtor shall submit to take the highest bid, that is fairly made, it is in the highest degree important that these forced and peremptory sales, so frequently attended with sacrifices and loss to a suffering class of the community, should be preserved pure and free from any taint of fraud. To subject the debtor to a forced sale of his property, at whatever price it may bring, is a hard case enough. The policy of the law, however, and the inviolability of contracts, demand that concession to the rights of creditors. To make him the victim of corrupt combinations or artifices on the part of unfeeling and voracious speculators, is what this Court will not permit. The rule laid down in *Martin*& *Walter*v. *Evans,*will be applied, in a case proper for its application, either on the part of the debtor himself or of creditors interested in the sale of his property.

But between that case and this, there is no analogy. There is not a circumstance here which, when properly, interpreted, warrants the imputation of unfairness in the sale. The only evidence which can be distorted into such a view of the transaction, is that of the witness John Cullum. It appears that this witness, together with the complainant, was the surety of Peter Redheimer for a debt due to Richard Coleman, executor of M. Coleman. Peter Redheimer had given his sureties a mortgage of negroes, as indemnity for their liability on this debt. Cullum, however, was not satisfied with his position, and had come to the sheriff’s sale with the intention of bidding on the land, to the amount of the debt due the estate of Coleman; which was at that time in execution against himself, his co-surety, and their principal, Peter Redheimer. His intention to bid was not communicated *to*Coleman. He applied to the complainant to release or indemnify him on his debt. This the complainant had refused, telling him he must get rid of the judgment in the best way he could. The expression used by the complainant to this *289witness, so much commented on'in the argument, when he told him “not to be troubled, he should not be hurt,” is fairly susceptible -of an innocent and entirely different interpretation. I think he referred to the joint indemnity, which he and the witness held in the mortgage of the negroes; which from all that appears was entirely sufficient. Between two and three years afterwards, the complainant assumed upon himself the liabilities of Cullum on the debt of the executor of Coleman, on Cullum’s assigning to him his interest in the mortgage of the negroes. This, however, was notclaimed by Cullum as a fulfilment of any agreement, express or implied, as growing out of the sheriff’s sale of the land. But on the contrary he testifies that he *“*did not observe Coleman say or do any thing to injure the sale of the land.” The land was sold subject to a mortgage due to the complainant’s wife. This mortgage he exhibited, as he should have done, with a correct statement as to the amount due upon it, $13 or 1400. The land having been exposed at sale subject to the mortgage, was bid off at one dollar; which made its cost to the complainant, the balance due upon the mortgage.

This Court perceives no ground whatever for impeaching .the validity of the sale. The decree is affirmed and the appeal dismissed.

The whole Court concurred

*Decree affirmed.*