9 Ala. 959 (Ala. 1846), Creagh v. Savage

Citation9 Ala. 959
Opinion JudgeORMOND, J.
Party NameCREAGH & FORWOOD v. SAVAGE.
AttorneyHENLEY and PECK, contra.
CourtSupreme Court of Alabama

Page 959

9 Ala. 959 (Ala. 1846)

CREAGH & FORWOOD

v.

SAVAGE.

Supreme Court of Alabama

June Term, 1846

HENLEY and PECK, contra.

1. A purchase by a trustee, or by one standing in a fiduciary character as an agent, &c. at his own sale, is not absolutely void, but voidable merely. [ [[[ McLane v. Spence, 6 Ala. 897; Saltmarsh v. Beene, 4 Porter, 283; 1 Story's Eq. 317; Davone v. Fanning, 2 J. C. R. 252; Wormly v. Wormly, 8 Wheaton, 421; Hawley v. Cramer, 4 Cow. 718; Gallatirn v. Cunningham, 8 Cow. 361; Hunter v. Atkins, 1 Coop. S. C. 464; Prevost v. Gratz, Pet. C. C. R. 364.]

2. That such a purchase must be avoided by the cestui que trust, or if by creditors or other person, must be in a direct proceeding, having that for its object. [ Long on Sales, 435, and cases above cited,] and until thus set aside, is good both at law and in equity.

3. That these rules apply fully to the executive officers of thelaw, and sustained by precisely the same reasoning as shown by the cases cited.

4. In causes like the present, an adequate remedy may be had in the Circuit Court, from which the execution issued, by motion to set aside the sale. [ [[[ Mobile Cotton Press v. Magee, 9 Porter, 692.]

5. Although a Court might not entertain a suit by a sheriff to recover property bought at his own sale, which is the predicament of the cases relied on by the opposite side, the rule is entirely different when he is in possession, and his title is consummated.

ORMOND, J.

The first point made by the counsel for the plaintiff in error, is not, in our opinion, presented upon the record. It has been repeatedly held, that a party complaining of error in the judgment of the primary Court must present it distinctly upon the record, and that in doubtful cases every reasonable presumption and intendment will be made in favor of the judgment of the Court. This is a salutary and just rule, imposing no hardship whatever on the party supposing himself aggrieved, whilst the contrary doctrine would be productive of great mischiefs and would constantly lead to the reversal of judgments for supposed errors, which had not in fact been committed. If the objection here was that there was no proof of the execution of these instruments, the point should have been distinctly made in the Court below. But in addition to the want of a specific objection, such as is raised here, the record itself shows what the true point intended to be raised was. The plaintiff had proved the possession by the defendant in execution of the property levied on, after the purchase by the claimant, down to the time of the levy by the plaintiffs. To repel the presumption which the law makes in such a case, the note and agreement were offered by the claimant, to the introduction of which the plaintiffs objected, because they had no knowledge of them. This then is the precise point raised in the Court below, and is in effect an admission that in other respects these instruments were competent as testimony. We are clear in the opinion that the objection now made is not presented upon the record.

It is conceded by the counsel for the defendant in error, that a sheriff cannot make a valid purchase at a sale made by himself, and the only question for our decision is what is the effect of such a purchase; is it an absolute nullity so that no...

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