Opinion
Fall Sessions, 1841.
Rodney, for the purchaser.
Gray, contra.
A writ of venditioni exponas, returnable to the November term, 1841, was issued against the defendant, for the sale of a tract of land situate in White-clay creek hundred, and which had been previously taken in execution upon a fi. fa. under a judgment obtained by the plaintiff. To the venditioni exponas the sheriff made return, that he sold the said tract of land of the defendant on the fourth of August, 1841, to John Miller of the said hundred, for one thousand dollars. It was admitted that the judgment and all the proceedings under the fi. fa. and venditioni exponas were regular.
The purchaser filed an affidavit setting forth in substance, that since the day of sale, the defendant, Andrew Wilson, had cut down and removed nearly all the wood and timber trees then growing on the premises: that he had taken down the granary and corn-crib, removed them into the State of Maryland, and there sold them: that he had removed the partitions in the dwelling-house; and by these acts the property was so much injured, that the benefit to the deponent in making his purchase, was entirely lost to him.
Upon this affidavit, Mr. Rodney, of counsel for the purchaser, obtained a rule to show cause why the sale should not be set aside. At the hearing of the rule, it was proved on the part of the purchaser, that since the day of sale, wood to the value of about one hundred dollars, being the greater part of the wood growing on the premises, had been cut down, but not all removed: and that other injury had been done to the premises.
Mr. Gray, of counsel for the execution creditor, now showed cause against the rule. He argued that the title of the purchaser commences with the sale. The contract is then completed, and he is bound to perform it according to the conditions of sale. He, therefore, takes the property subject to all risks, and must bear any loss which may happen. He is entitled to the rent from the day of sale, and to the possession in the summary mode prescribed by our act of assembly; although he cannot maintain an action of ejectment until after the execution of a deed by the sheriff, which is necessary to perfect his title. (Lessee of Crawford vs. Green, 1 Harr. Rep. 465.) The property therefore being at the risk of the purchaser, he cannot now claim the interposition of this court; but ought to have applied to the chancellor for an injunction to stay waste. Besides, if the sale be set aside on the ground contained in the affidavit, it must be set aside at the application of a second purchaser, in case of further waste being committed by the defendant, between the second sale and the return of the writ; and thus a sale of the property might always be defeated.
Mr. Rodney, in support of the rule, contended that the title of the purchaser at sheriff's sale does not accrue until the confirmation of the sale by the court on the return of the writ, and payment of the purchase money; and that until then, the title of the defendant in the execution is not divested. (8 Johns. Rep. 520, 550, Catlin vs. Jackson.) That the purchaser in this case could not therefore obtain an injunction to stay waste committed by the defendant between the day of sale and the return day of the writ; and that his only remedy is by application to this court, from which the process issued, to set aside the sale: that the agreement of the purchaser was, to take the land, in the condition in which it was at the time of the sale; not in its present dilapidated state, so much deteriorated in value, and without any default on his part: that he is a judgment creditor, and became the purchaser to secure his debt; and that to require him now to pay a full price for the land, presented a case of extreme hardship, from which he ought to be relieved by this court, which had often set aside sales in favor of purchasers on less grounds than the present. By the Court.
To obtain, the sale of real estate under a judgment, the creditor issues a fieri, facias, by virtue of which, the sheriff takes the land in execution. If, upon the return of the writ, it appears by the inquisition annexed to it, that the clear yearly rents and profits are not sufficient within seven years, to satisfy the debt or damages in the writ mentioned, and other judgments and liens against the defendant, a venditioni exponas issues to sell the lands. Under this writ, they are put up, on written conditions of sale, and struck off to the highest and best bidder. By a memorandum in writing, at the foot of the conditions, he acknowledges himself under his hand and seal to be the purchaser, and engages to comply in all respects, with the conditions; among which are the payment of ten per centum of the purchase money on the property being struck off, and the residue on the return day of the writ. Upon the execution of such an agreement, in what position is the purchaser placed? The contract of sale is complete, and he is bound to fulfil it. He stands in the same situation, with the purchaser of real estate at auction, or with the purchaser by private agreement. In each case, the vendee is considered as the equitable owner from the time of signing the agreement or contract of sale. He is bound to pay the purchase money according to the terms of his contract. He is entitled to any increase of value or other benefit that may accrue to the property between the time of signing the agreement and the execution of the deed of conveyance; and is liable to any loss or injury that may happen to the property within the same period. Such, in our opinion,, is the position in which the law places the purchaser at sheriff's sale. It is incorrect to say, that his title does not accrue until the sale is confirmed by the court; because no confirmation of the sale by the court, is required by our law or practice; nor any examination of the sheriff's return, or of his proceedings under the writ: and no action of the court in relation to the sale is had, unless a rule be obtained to show cause why it should not be set aside. This rule is usually granted for some defect or irregularity in the process, or mode of conducting the sale, or for neglect of duty or misconduct on the part of the sheriff, or some other sufficient matter; and proceeds merely from the exercise of that control or authority over its own process, which the court would exert in any other case, for the correction of abuse or prevention of injury.
The title then of a purchaser at sheriff's sale under execution process does not depend on any direct action of the court in relation to the sale: but commences with the property being struck off to him, and his signing the agreement; and is consummated by the sheriff's deed; which passes the legal estate, and has relation back to the day of sale. The purchaser in the present case, having an equitable title to the tract of land sold to him under the venditioni exponas, was entitled to, and might have obtained, had he chosen to apply for it, an injunction from the Court of Chancery to stay the commission of waste by the defendant; upon the ground, that the injury was irreparable, and there were no means at law of preventing or redressing it. The purchaser resided in the vicinity of the tract of land; had knowledge or information that the defendant was committing waste, and took no means to prevent it. If this sale be set aside, a second sale, as remarked by the counsel opposing the rule, must also be set aside, if the defendant commits waste after the sale and before the return of process.
The Court consider that there are no sufficient grounds for setting aside the sale; and, therefore, that the rule be discharged.
Rule discharged.