Robinson v. Clark

• Decision Date: 31 August 1860
• Citation: 52 N.C. 562,7 Jones 562,78 Am.Dec. 265
• Court: North Carolina Supreme Court
• Parties: WILLIAM ROBINSON v. WESLEY CLARK.

7 Jones (NC) 562

52 N.C. 562

78 Am.Dec. 265

WILLIAM ROBINSON

v.WESLEY CLARK.

Supreme Court of North Carolina.

August Term, 1860.

The purchase by a ministerial officer at his own sale, under an execution, passes no property, and the case is not altered by the fact that the sale is conducted by another officer in concert and joint interest, with the purchaser.

THIS was an action of TROVER, for the conversion of a wagon, tried before BAILEY, J., at the Fall Term, 1858, of Haywood Superior Court.

One W. W. Battle, as a constable, and Manson Tate, deputy sheriff, had several executions against the plaintiff, and levied them upon the wagon in question. They made their levies on the same day, and agreed to sell on the same day for their joint benefit. Several persons attended the sale, but the plaintiff was from home, and it was agreed between the officers, that Tate should cry the sale, and Battle bid off the property for the plaintiff, (the defendant in the executions,) that is, Battle was to bid off the property, and hold it till the plaintiff returned, when he was to have the liberty of redeeming it by paying the amount bid with interest. According to this understanding, the property in question was sold and bought by the officer Battle, who afterwards transferred his bid to the defendant, who agreed to take the property on the terms, and subject to the trust attaching to it in the hands of Battle. On the return of the plaintiff, he tendered to the defendant the sum paid by him for the wagon, with interest, and demanded the wagon, but he refused to surrender it, and this action was then brought.

The Court instructed the jury that an officer could not buy at his own sale-- that the sale in this case, was, therefore, a nullity, and that plaintiff had a right to recover the value of it, the wagon. Defendant excepted.

Verdict and judgment for the plaintiff, and appeal by the defendant.

J. W. Woodfin, for the plaintiff .

Merriman and Henry, for the defendant .

MANLY, J.

It seems to us, the view which his Honor took of this case, in the Superior Court, is correct. It is a well settled principle, that an officer (sheriff or constable) cannot buy at his own sale, either directly or indirectly--either by himself or an agent--for himself or another. Doe on the demise of McLeod v. McCall, 3 Jones' Rep. 87.

By a reference to the facts of the case as reported, it is manifest that the sale of officer Tate was made by him in behalf, not only of...