Opinion
(June Term, 1830.)
1. Where lands were sold upon the vendee's agreeing to discharge sundry executions levied upon it, and paying the balance to the creditors of the vendor as he should direct, upon a sale by the sheriff, under one of the executions, a promise by the vendee to pay the debt of a creditor if he would not bid, provide the vendor would consent, is not binding without such consent.
2. Such agreement is not void, as against public policy.
ASSUMPSIT upon a special agreement. On the trial before DANIEL, J., the case was that the plaintiff at January term, 1824, of Lincoln County Court had obtained a judgment against one Cox; that the defendant had in November preceding bought Cox's land at $500, and had agreed to discharge several executions which were levied upon it, and to pay the balance of the purchase money to such of Cox's creditors as he, Cox, should direct.
Gaston, for the plaintiff.
No counsel for defendant.
FROM LINCOLN.
At January term, 1824, of the County Court, the sheriff exposed the land of Cox for sale under the execution which the defendant (365) had agreed to satisfy, and at the defendant's request stated to the bystanders the bargain which had been made between him and Cox. After the land had been cried some time, the plaintiff came up, and, upon being informed by the sheriff that he was selling Cox's land, said he must bid for it to save his debt. The defendant requested the sheriff to inform the plaintiff of the purchase he had made, upon which the plaintiff offered not to bid, if the defendant would pay his debt, and the defendant agreed to do so, if he had funds in his hands after satisfying the prior liens, and if Cox was willing. Upon this arrangement the plaintiff ceased bidding, and the defendant purchased the land. Cox died in the course of that week, and the defendant refused to pay the plaintiff his debt.
His Honor instructed the jury that so much of the consideration of the defendant's engagement as rested on the benefit he derived from the agreement of the plaintiff not to bid at the sale was against public policy and void in law; that a discharge of Cox by the plaintiff would be a good consideration for the promise of the defendant. Verdict for defendant. Appeal by plaintiff.
It appears from the case stated for the opinion of this Court that the plaintiff was desirous of bidding for the land, unless his debt was secured. And I think he is entitled to the benefit of any proposition which the defendant made to him that may have induced him not to bid; because I think no person has a right to complain that he was injured by the proposition made, as tending to prevent a fair competition in bidding for the land. The proposition made by the defendant may therefore be considered on its own merits freed from any consideration of public policy. The defendant had purchased the land of Cox, and the plaintiff had no lien upon it (366) for his debt. But the defendant told the plaintiff that he would as soon pay his debt as any other, if Cox was willing, and he had enough left after paying off the liens on the land. For it appears that the land was bound for some debts before the defendant purchased it. At this stage of the proceedings what was the defendant's liability? It was not absolute, because a main ingredient was wanting — namely, Cox's assent, and that was indispensable, because Cox surely had a right to the purchase money after the land was released from the liens upon it, and as certainly the sheriff had a right to the money which the defendant bid for it at the sheriff's sale. It is true the plaintiff might have bid for the land and run it up so as to make it a hard bargain to the defendant; but public policy did not require this. It appears that the plaintiff chose not to bid for the land, and thereby acquired the defendant's good will, although he ran the risk of getting Cox's assent that the defendant should pay his debt. By this proceeding the plaintiff's right against Cox was not impaired.
PER CURIAM. No Error.
(367)