#### Sherrill and Sherrill *against*Crosby.

NEW YORK,

October, 1817.

Where land has uan” officers fm onemaortgage,the owner is altoge- and be cannot, afterwards com1 chLerthtó Pre convey the land him, on re-chase8 money •" has been^o**preh¡twe!nreettent chaser,atheP“ti deimed'to'iiaie for the former; andeven if there were a *parol*agreement to that effect, it would still be ■void by the ataof frauds; and, therefore, where the owner and, therefore, the loan officers", of land sold by paid the a sum of lease his inter-maintain an ac-had 80^received to recover it hack, as received unconscientÍ¡erey,wercthar m not, in relation to the subject.

THIS was an action of assumpit, for money had and re* ceived. The cause was tried before Mr. J. *Yates,*at the *Dutchess*circuit, in *September,*1816.

*In*September, 1814, a public sale was held by the loan offices of the county of *Dutchess:*a mortgage given by one Scott, for o o o - seventy*^ve pounds, was first taken up, and Mr. *Tallmadge,*one of the loan officers, announced that the amount of the mort-to # # *7*SaSei including interest and costs, amounted to 212 dollars and cents, and mentioned that *Jeremiah Sherrill,*jun. deceased, had for several years, paid , the interest on it. cess, who was present at the sale, observed that there must be some mistake, that the *Sherills*were men of property, would not make a sacrifice by permitting the lotto be sold, and , *m*?» 7 1 i . proposed to *1 allmadge*to postpone the sale, until it was certain 1 . , , , . ~ ...... that notice had been given to them: this the loan ofiicer declined . « iii iit-v to do, as inconsistent with his duty, but remarked to *Davies*and Davies, a the defendant, who was also- present, that some friend of the fam% had better bid the land off, and that as they had been old neighbours of the Sherrills, one of them ought to do it. The defendant then bid the sum of 212 dollars and 50 cents, and the land was struck off to him. There was no agreement between, the loan officer and the defendant, in relation to the sale, and it *'*was perfectly unconditional; and *Tallmadge,*in his testimony, _ *,*<. sta*e^> ^hat he thought it inconsistent with his duty, as a loan ^cer» to annex any conditions; but he desired that the land *361might fall into the hands of some person who would probably release it to the owners, although he regarded this as a mere matter of courtesy between the purchaser and owners. A deed for the land was not executed at the time, but an agreement in writing between the loan officers and the defendant, to give a deed, was entered into, it was not until *October,*that the plaintiffs, who were the devisees of *J. Sherrill,*became acquainted either with the sale, or knew that they ever had any title to the land. A negotiation then took place between the plaintiffs and defendant, during which the land was appraised at 2000 dollars, and, fm-r ily, eiter much difficulty, the defendant was induced to take 500 dollars for his bargain, and released to the plaintiffs his interest, who paid up the arrears due on the mortgage, and gave the defendant their father’s note for the sum agreed upon, which they afterwards paid. The defendant admitted that at the time of waking the purchase, he supposed the land belonged to the widow and children of J„ Sherrill, and that he bid for it, for their use; but on discovering that it belonged to his brothers, he changed his intention. The testimony was contradictory, as to the fact, whether the plaintiffs, at the time of the negotiation with the defendant, were acquainted with the circumstances attending the sale. The action was brought to recover back the amount of the note, which had been paid to the defendant; and a verdict was taken for the plaintiffs, for the sum of 500 dollars, with interest, subject to the opinion of the court, on a case containing the facts above stated.

*P. Ruggles,*for the plaintiffs, contended,

1. That every agreement which tended to prevent a fair competition at a •sheriffs sale or public auction, to the injury of the debtor, was void, and that every attempt at fraud or circumvention at such public sales, was to be discountenanced.*

2. That the defendant took an undue advantage of the plain tiffs’ situation, to extort from them the 500 dollars ; and that it was against conscience for him to retain it; that the cases were numerous, in which an action of this kind has been maintained, on similar grounds, †

*Burr,*contra,

relied on the case of *Hall*v. Shultz, ‡ as in point, to show that the action could not be. maintained.

*362*Ruggles,*in reply,

said, that in *Hall v. Shultz,*the defendant,. obtained the property legally, but here the defendant had ac* quiredut illegally# v

*

*Thompson*v. *Davis, 13 Johns. Rep. 112.*

†

 2 Str. 915. *Doug,*696. n. 4. *Term Rep*431. 485 1 *Term Rep.*285 1 Esp. Rep. 84.

‡

4 *Johns. Rep.*346.

Spencer, J.,

delivered the opinion of the court. There is no principle of law which can authorize a recovery here. The sale by the loan-officers was absolute and unconditional, and by the default in paying the interest, for 22 days/ from the first *Tuesday*in *May,*preceding the sale, the estate of the mortgagor was gone; and the statute vested an absolute indefeasible estate in the mortgaged land, in the loan-officers. (9 *Johns. Rep.*129.) Besides, there was no communication between the parties, nor any agent of them, as to the terms and condition of the defendant’s purchase; and clearly, no contract was made which would render the sale conditional between the loan-officers and the defendant. Let us suppose that no arrangement had subsequently been made between the parties, as to the renunciation of the defendant’s purchase ; was there any remedy, at law or in equity for the plaintiffs, and could they have compelled the defendant to convey the land to them, on being paid the amount bid at the sale ? I conceive not. Independently of the consideration, that their legal and equitable right in the land was lost, by the express provisions of the statute, and, therefore, they could not be regarded as having any interest in the property, the sale was absolute and unconditional, as between the loan-officers, in tvhom the estate was vested, and the defendant. Of this there can be no"doubt, as the only evidence of that sale was the written stipulation entered into by the loan-officers and the defendant. \ ‘

It is a mistake to suppose that the defendant purchased under an agreement to bid for the benefit of the plaintiffs : Who were the parties to such an agreement ? Not the loan-officers, for their sale was, and must have been, absolute; not the plaintiffs, for ■ they were neither present, nor were they represented by any person pretending to have authority to treat for them. The facts in the case negative the possibility of any agreement.

It has been urged, that the defendant became a voluntary agent and trustee for the plaintiffs ; this position is contradicted by the fact, that he bid for himself, and immediately took the written evidence that he had purchased the land in his own.

*363In the case of *Hall*v. *Shultz,*(4 *Johns. Rep.*240.) we intimated a strong opinion, that the defendants having, with their own money, purchased the plaintiff’s farm on an execution, under a parol agreement to reconvey it to the plaintiff, on being repaid the money advanced, there was no remedy at law or in equity, to enforce the agreement, or to recover damages for its non-performance, on the ground that the agreement was void, and within the statute for the prevention of frauds. The material distinction between that case and this consists in the total absence of any agreement that the defendant should make the purchase for the plaintiffs.

I cannot bring myself to doubt of the soundness of the opinion, that had there existed a parol agreement, that the defendant should purchase in the land for the plaintiffs, and he had made such purchase with his own money, that the agreement would be within the statute of frauds ; and much less can I doubt that the plaintiffs have wholly failed to make out a case entitling them to recover. I consider what passed at the sale as a mere intimation of a wish, on the part of the loan-officers, that the property should not be sacrificed, and an expectation that when the defendant purchased, he would be content to give up the purchase to the persons interested, on being repaid the money advanced.

The 500 dollars paid by the plaintiffs to the defendant can be viewed in no other light than as paid upon a purchase of the defendant’s right to the land, which must be considered as perfect. It seems to me certain, that if the plaintiffs had no remedy to coerce the defendant to convey to them the land he purchased, (and I am entirely convinced they had not,) there is no ground to say that he received the 500 dollars unconscientiously. On the contrary, the defendant surrendered land worth far more than the consideration received.

Judgment for the defendant.