Wicker v. Worthy, 51 N.C. 221, 6 Jones 221 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 221, 6 Jones 221

MATTHEW WICKER v. KENNETH H. WORTHY.

Mere silence on the part of a sheriff as to the existence in his hands of a prior lien on the property he is selling, will not subject him to an action of deceit, but if he does or says any thing intended or calculated to mislead a purchaser, in this respect, he is liable. •

Enquiring from the sheriff, and reliance on his information as to the nature of the liens and levies of execution in his hands on the property offered by him for sale, is certainly the exercise of reasonable caution and diligence, as this is a matter peculiarly within his knowledge.

Action on the case for a deceit, tried before Dick, J., at the last Eall Term of Chatham Superior Court.

The defendant, as the sheriff of Moore county, was present, conducting a sale of property under executions in his hands against one Bryant. About the commencement of the sale, a question arose among the bystanders, whether there was not some execution of prior lien, which had been levied on the land, and under which it was not advertised or offered for sale ; whereupon Bryant stated that this had been the case, but that those liens had been discharged, and he called upon the defendant, as sheriff, to make a proclamation to that effect, and to state that the sale might proceed without danger to the purchasers; this the defendant declined doing; upon which Bryant said, he would do it. Before the sale began, the crier, one Brown, made a public declaration, addressed to the bystanders, to the effect “ that arrangements had been made whereby good titles would be made for the property about to be sold.” The defendant was in hearing of this proclamation and said nothing. Much property was sold before the land in question was put up. When it was offered, the crier and one Murchison, an uncle of the defendant, both made proclamation that there was no dispute about the title to this tract; this occurred in the presence and hearing of the defendant. Yery shortly before the sale of the land in question was begun, the plaintiff and defendant were seen conversing privately, and just as they separated, the defendant stepped forr ward and 'commenced bidding for the land, as the agent of the plaintiff. After bidding some time, he ceased, when the plaintiff took it up, in person, and ran up the price to $250, when it was knocked off to him at that price. This sale took place on 20th of December, 1853. At the next term of Moore County Court, which was in January, 1854, the defendant, as' sheriff, returned an execution against Bryant, in favor of one Buie, levied on the same land, under which, it was afterwards sold by him and conveyed to the purchaser, (Buie.) An action of ejectment was immediately brought1 by Buie against the plaintiff, which, after pending for some time, was compromised by the payment of $400 by the plaintiff. Bryant was indebted to the defendant — how much did not appear- and Murchison, above spoken of as the defendant’s uncle, was deeply involved for Bryant, who has since failed. There was no evidence that the defendant said any thing in reply to the public declarations of Bryant, or of Murchison, or the crier, about the title of the land, or the discharge of the previous levies.

The Court charged the jury that if the defendant, by his conduct, had intentionally deceived the plaintiff, as to the existence of the levy on the land, he would be responsible to the plaintiff, unless the latter had shown a want of ordinary prudence in informing himself as to the state of the matter; and upon that point he charged that the plaintiff was bound to know of the judgments against Bryant, (including Buie’s,) and that executions had issued thereon, but that after charging himself with such information, it was a due pursuit of inquiry to resort to the sheriff for further information, and to rely upon his truth and fairness in the transaction. The defendant’s counsel excepted.

Yerdict for the plaintiff, Judgment. Appeal.

Hauglvbon, for the plaintiff.

Manly and Phillyps, for the defendant,

Peabsoet, C. J.

Mere silence on the part of a sheriff, in respect to the levy of an execution which he has in his hands, when property subject to its lien is exposed to sale in his presence, is not sufficient to make him liable in an action on the case for a deceit. But if he says or does any thing intended and calculated to create the impression that there is no lien, and that a purchaser from the defendant in the execution will' get a good title, he will be liable to the action.

There was evidence in this case tending to prove the decpit which ought to have been left to the jury, i. e., the proclamations made by the crier and Marshison, when the tract of land was offered ; the private conversation between the plaintiff and defendant, and the defendant’s bidding for the plaintiff, and other circumstances, such as the fact that the defendant in the execution was indebted to the defendant, and that his uncle, Murchison, who had busied himself about the' sale, was deeply involved on his account.

"We also concur with his Honor upon the question of law. Caveat emqytor is the rule in actions for deceit; but the fact of a levy or of the intention of the sheriff to insist upon the lien of the execution, or to forego it because of certain arrangements which the defendant in the execution had made, and upon which the sheriff was willing to rely, so as to permit a sale, are peculiarly within the knowledge of the sheriff, and even a very cautious man might reasonably rely upon his representations in regard to them. There is no error.

Pee OuexaM, Judgment affirmed. .