Harrison v. Mchenry

• Decision Date: 31 October 1850
• Docket Number: No. 33.,33.
• Citation: 9 Ga. 164
• Parties: Kinchen Harrison et al., plaintiffs in error. vs. Enos McHenry, defendant in error.
• Court: Georgia Supreme Court

9 Ga. 164

Kinchen Harrison et al., plaintiffs in error. vs. Enos McHenry, defendant in error.

No. 33.

Supreme Court of the State of Georgia

OCTOBER TERM, 1850.

Ejectment, in Union Superior Court. Tried, September Term, 1850, before Judge Hooper.

Enos McHenry had caused a fi. fia. in his own favor, against Kinchen Harrison and others, to be levied on a lot of land, and constituted Henry Harrison his agent to bid for it at the sale. Harrison did not bid, but requested Roach, the Sheriff who sold the land, to bid for it. Roach bid it off, and afterward conveyed it to McHenry, under which deed plaintiff claimed to recover.

The land was subsequently levied on and sold by virtue of sundry Justices' Court fi. fas. against said Harrison and others, of older date than McHenry's fi. fa., and was bid off by one of the defendants, under, which last sale and the Sheriff's deed thereon, defendants claimed.

Defendants insisted that the first sale was void, because the Sheriff had bought at his own sale, and further, that Roach could not be considered as the agent of McHenry, because Harrison could not delegate his authority as agent, nor was it a case where an assumed agency could be subsequently confirmed.

Defendants also insisted, that the last sale was valid as against the first, being founded on an older fi. fa.

The Court ruled, that McHenry's title was good, and he recovered the premises, and defendants excepted to said ruling of the Court.

Martin and Peeples, for plaintiff in error.

W. H. Underwood, represented by Hull, for defendant.

By the Court.—Nisbet, J., delivering the opinion.

The presiding Judge instructed the Jury, that if they believed that the Sheriff was the agent of the plaintiff, McHenry, at the time of the sale, and bid off the property for him as such agent, they would be authorized to find for the plaintiff.

The exception to this instruction makes the question, whether the Sheriff, at a sale under execution, conducted by himself, can act as the agent of an absent person in the purchase of the property. It was assumed in the argument, and the assumption seems to me to be indispensable to the power claimed for the Sheriff in the instruction, that it is competent for him to make a valid purchase at his own sale. If he can buy on his own account, it would seem that he can also purchase as agent for another; and if he cannot buy on his account, he cannot purchase as agent for another. At least, some of the reasons which forbid his buying on his own account, equally forbid his acting as agent. Trustees, generally, are unable to buy the property of their cestui que trust. The purchase is not in their case void, per se, but the cestui que trust may come in, as a matter of right, and set it aside. He may do this, whether the sale be bona fide or not. His right to set it aside does not depend upon the fairness of the transaction. The honesty of the trustee has nothing to do with it. The object of the rule is to secure fidelity in the trustee to the interests committed to his hands. To secure this, the law does not abrogate his purchase, because it was fraudulent and injurious to the rights and interest of the cestui que. trust, but goes upon the idea, that he shall not be subjected to the temptation of violating his trust by committing a fraud. It shields him from the temptation, by declaring him incapable of making a purchase which will hind those whom he represents: and it gives them the option of vacating or affirming the purchase, according as they may consider it their interest to do the one or the other. This election the cestui que trust must make in a reason-able time. He may affirm it, and then it becomes unimpeachable. A distinction was at one time sought to be made between a private sale and a sale at auction. The rule, however, is now well settled, as applying to both kinds of sale. Such is the law of this Court. See Worthy et al. vs. Johnson et al., 8 Geo. R. 241,. 242, and the authorities there referred to. The whole subject is discussed by Chancellor Kent, in Davore vs. Fanning et al., in an opinion which is unsurpassed for its learning and ability, and in which it is settled that it makes no difference, in the application of the rule, that the Sale was at public auction and bona fide, and for a fair price. 2 Johns. Ch. E. 252. Nor can there be a doubt about its application to Sheriffs. The Sheriff is a trustee for the defendant in execution, by virtue of his office. When personal property is seized in execution, he acquires a property in it. He can maintain trover for it, even against the defendant himself; and Where real estate is levied upon, he acquires a qualified property in that. All of which he holds in character of trustee for the owner; and being trustee, the obligations and disabilities of a trustee devolve upon him. 3 Binn. 54. 2 Johns. Ch. R. 252. 2 Fonbl. 447, note.

If the Sheriff be viewed in the light of a mere agent, he cannot purchase at his own sale. He is the agent of the defendant in execution, appointed by the law, for the purpose of selling his property to the best advantage and to the highest bidder. His principal is entitled to his best ability and his perfect integrity in the discharge of the duty which the laws devolve upon him. The law of agency is, that the principal bargains for the exercise of "the disinterested skill, diligence and zeal of the agent for his exclusive benefit." He can have no interest and do no act adverse to the interest of his employer, or incompatible with the application of his best skill, zeal and diligence to the promotion of that interest. The privilege to an agent of buying the property he is engaged to sell, is utterly incompatible with the obligations owing to his principal. The interest of the principal is that he obtain the highest price, and it is the duty of the agent to sell it for the highest price. It is the interest of the purchaser to buy at the lowest price, and he is presumed to bid with reference tohis interest. Emptor emit, quam minimo potest; venditor vendit quam maximo potest. If, then, the Sheriff, who is the agent of the defendant, were permitted to purchase at his own sale, his duty to his principal and his own interest would stand in direct opposition. Either he must violate the duty which he owes to his principal, or exercise a virtue rare amongst men—that is, sacri-five his own interest to that of another. To avoid this collision of interest, and to prevent a temptation to infidelity in his trust, the law imposes upon him a positive prohibition. It is well settled, that an agent employed to sell, cannot himself become the purchaser; and an agent employed to buy, cannot himself become the seller. 1 Paley on Agency, by Lloyd, 33, 34, 37. 3 Chitty on Com. and Manuf. ch. 3, p. 216, 217. 1 Livermore on Agency, ch. 8, §6, p. 416 to 433. 1 Buss. & M. 53. S. C. 2 M. & K. 819. 6 Pick. 196. 5 Paige, 650. 13 Vesey, 103. 2 M. & Craig. 374. 6 Lou. E. 407. Story on Agency, §§210, 211.

This reasoning applies with more than ordinary force to the Sheriff, who is the appointee of the law and a public agent, and because he is not alone the agent of the defendant, but also of the plaintiff in execution. He is the plaintiff's agent to collect his money by the sale of the defendant's property. It is in many cases the interest of the plaintiff that the property shall sell for the highest price, as where the whole property of the defendant, at a fair price, is either barely enough or not enought to pay his judgment. Any infidelity in the Sheriff in such cases, in not bringing the property fairly into market, is an injury to both plaintiff and defendant, and he violates his duty to both. The right to purchase is in contravention of the policy of the law. The State has a right to require skill, diligence and fidelity in her agents. The paramount good of the whole people requires that she should exact all these things. To secure them, it is wise to prohibit the Sheriff from buying. It is her duty so to regulate the execution of the laws, as to prevent injustice to the citizen, and to remove temptations from those who are chosen to execute them. The Sheriff accepts office—it is not forced upon him. He cannot, therefore, complain of the disabilities which are incident to it. All these considerations derive strength from thefact that, at Sheriff\'s sales, there are peculiar facilities for the officer to perpetrate frauds without detection. This facility to do wrong, and this difficulty of detection, give almost resistless force to the temptation. The disability of a selling agent of the Court, to purchase property which he is required to sell, was held by the House of Lords, in the case of the York Buildings Co. vs. McKenrie, which Judge Kent pronounces "one of the most interesting cases, on a mere technical rule of law, that is to be met with in the annals of our jurisprudence. 8 Brow. P. Cas. by Tomlin\'s App. It vindicates the doctrine we now hold, the more especially as the agent of the Court, appointed in that case to sell the property of an insolvent company for the benefit of creditors, occupied the position which the Sheriff occupies in this ease. It is our judgment, therefore, that a purchase by a Sheriff is absolutely void, and yields to the title of another, acquired by a subsequent sale of the same property.^* In Barker vs. Marine Ins. Co., Judge Story, in pronouncing upon the validity of a sale by the master of a ship, acting as agent for the owners, where he became the purchaser, says, "As to the first point, it appears to me that the sale wrought no change in the title of the property, whatsoever. It was a merely inoperative Act, leaving the property exactly where it found it. It is impossible that a person can be, at the same time, buyer and seller; and a person who acts as agent in selling, cannot, upon the known principles of law, become a purchaser at the sale." 2 Mason\'s B. 371. See, also, 1 Murph. 35. C. & N. 550. 5 B. Munroe...