Hansford et al. v. Barbour

• Decision Date: 09 June 1821
• Citation: 10 Ky. 515
• Court: Kentucky Court of Appeals
• Parties: HANSFORD ET AL. <I>v.</I> BARBOUR.

Page 515

10 Ky. 515

HANSFORD ET AL.v.

BARBOUR.

Court of Appeals of Kentucky.

June 9, 1821.

Judge MILLS delivered the opinion.

This is a motion to quash a sheriff's sale and the bond taken in pursuance thereof, made by the plaintiff in the execution. The grounds set up may be reduced to the following:

1. That there was fraud and collusion between the sheriff and purchasers, the sheriff being interested, or designing to favor the purchaser. And

2. That the sale, being at one year's credit, was unconstitutional and void.

We concur with the court below in believing the evidence insufficient to prove any collusion in the sale. The sheriff appears to have complied with the law in making the sale public. He urged others to bid, both publicly and privately. The sale continued near three quarters of an hour. A bidder who appeared, professing himself to be the agent of the plaintiff, had once or twice declared he would bid no more, and told the sheriff to strike it off to the purchaser, which he did. Another, who acted as the provisional agent of the plaintiff, complained that it was cried off too low. The sheriff declared be would again set it up, but the purchaser objected; and after the sheriff had conversed with the purchaser in private, he declined setting up the land again. We cannot infer, from this private interview, that there was collusion, especially as the testimony is utterly silent as to any improper communication between them. There is, then, left only inadequacy of price, from which unfairness can be inferred, which is a circumstance, per se, not sufficient to warrant the presumption of fraud under the circumstances of this case.

As to the second point, we admit that an individual, whose rights are prejudiced by the operation of a law conflicting with the constitution, has a right to demand of the judiciary a decision on the validity of the law, and no court, however delicate the task may be, is warranted in shrinking from the disagreeable duty. But such individual ought to show that his constitutional rights were infringed without his consent, and ought not to jeopardise his rights voluntarily, by attempting to proceed under a law, and take the benefit of it so far as to delude others into the dilemma, and then turn around and complain of constitutional injuries. Here the plaintiff in the execution, through the instrumentality of his son, procured one agent to attend the sale, and then, out of abundant caution, provided a second to attend, lest the first might fail to be there. We are aware that this agency has been contested on the trial. It is certain that his son employed the agents, and no...