CASES

IN

THE SUPREME COURT

OF

PENNSYLVANIA.

NORTHERN DISTRICT, JULY TERM 1840.

Freeman against Caldwell.

The principle that in judicial sales there is no warranty, is applicable to sales of personal, as well as real, property. Hence, a judgment is satisfied by a levy and sale of goods to its amount, under a fieri facias, although the title of the plaintiff, who was the purchaser thereof, be subsequently defeated in an action of replevin.

ERROR to the common pleas of Lycoming county.

James D. Caldwell against Brewster Freeman. The plaintiff obtained a judgment against the defendant for 854 dollars 36 cents, upon which the defendant paid 400 dollars. A fieri facias subsequently issued for the balance, which was levied upon thirtytwo head of cattle as the property of the defendant, but which were claimed by a third person. The, sheriff, however, proceeded and sold the cattle, for an amount sufficient to pay the balance of the debt, and they were purchased by the plaintiff in the execution. Subsequently, John Pfoutz and John A. Gamble brought an action of replevin for the cattle against James D. Caldwell and recovered them. The plaintiff then issued this scire facias, upon his original judgment, to show cause why he should not have execution for the balance due thereon previously to the issuing of the fieri facias upon which the cattle were levied and sold. The court below in

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[Freeman v. Caldwell.]

structed the jury, that the defendant was not entitled, under the circumstances of the case, to a credit for the amount of the proceeds of the sale of the thirty-two head of cattle. And this opinion was assigned for error.

Armstrong and Campbell, for plaintiff in error, cited 2 Kent's Com. 370, 473; 5 Serg. & Rawle 223; 9 Serg. & Rawle 162; 11 Serg. & Rawle 138; 2 Bay 171; 6 Watts 229; 5 Peters' Cond. Rep. 709; 9 Wheat. 616; 4 Serg. & Rawle 246; 2 Rawle 206; 1 Watts 425; 4 Cowan 65; 14 Mass. Rep. 57; 2 Watts 453; 6 Watts 400; 2 Watts 147; 13 Serg. & Rawle 60, 96.

Parsons and Greenough, contra, cited 17 Serg. & Rawle 436; 8 Serg. & Rawle 457; 5 Cowan 280; 9 Johns. 99; 4 Day 222; 3 Littell 435; 2 New Hamp. Rep. 72; 2 Bac. Ab. 701; 2 Bay 67; 1 Rawle 302; 1 Johns. Chan. 410, 515; 2 Dall. 115; 3 Yeates 268; 7 Watts 308; 5 Cowan 280.

The opinion of the Court was delivered by

GIBSON, C. J.-In judicial sales there is no warranty. The principle is universal, but particularly recognised by us in judicial sales of land, which we treat as a chattel for payment of debts; and it is of course equally applicable to the judicial sale of a chattel pure. What interest in it does the sheriff propose to sell? Not a title to it, but the debtor's property in it, whatever it may be; and the vendee, where the thing has been recovered from him, has no recourse to the price of it in the hands of the sheriff or the creditor's pocket. In the case of the Montallegre, 9 Wheat. 616, it was ruled, that a loss sustained by the marshal's vendee of a rotten article, sold by a sample with which it did not correspond, should not be made good out of the proceeds in court. Why shall not the same principle be applied to a purchase by the judgment creditor himself? By his bid he may have prevented a sale to a stranger who could have had recourse to no one; and thus have deprived the debtor of the benefit of his doubtful title, which may have been a legitimate subject of value. In the one case and in the other, the produce of it has, in contemplation of law, been brought into court and distributed; and the matter has consequently passed in rem judicatam. In Canon v. Smallwood, 3 Lev. 203, it was said arguendo that though the sheriff may pay directly to the plaintiff, his license, in that respect, is by permission of the court, and not by force of the law: and to the same effect is Wortman v. Conyngham, Peters' C. C. Rep. 243. Indeed, the very command of the writ makes it the sheriff's duty to return it. Even when the plaintiff is the purchaser, he is. supposed to have paid the price in the first instance, and to have received it back under an order of the court. It is a trite but invaluable maxim, and of course conclusive evidence of the law, that when different rights or characters exist together, they are to be

[Freeman v. Caldwell.]

treated as if they existed separately-cum duo jura in una persona concurrunt æquum ac si essent in diversis—from an application of which, it results in the case before us, that had the original judgment been reversed, the price, and not the cattle, would have been restored. For the same reason the judgment creditor might have been compelled to pay the sheriff surplus purchase money, had there been any, nor could he have recovered it back from the debtor after the sheriff had paid it over. It is not pretended that either party might not hold the other to the sale as to that; but the plaintiff asks to treat the execution, and the property levied in satisfaction, as a shopkeeper treats a bad note; and to proceed as if the whole were a nullity. But if want of consideration may be set up to annul a part of the sale, why might it not be set up to annul the whole. There is no foundation in reason or justice for a distinction. Thus stands the question on principles of analogy; and how stands it on the authorities cited to us as in point?

Adams v. Smitb, 3 Cowan 280, was a motion to amend by striking out the amount of sales endorsed on the execution to make way for an alias; which, it will be perceived, involved no more than an exercise of judicial discretion, which in that case seems to have been a pretty sharp one. Yet even that case concedes the necessity of getting the sheriff's return out of the way of a fresh proceeding. In Lansing v. Quackenbush, Ibid. 38, the court refused leave to amend in the case of land, on a supposition that the purchaser could be relieved only in equity; though, how a chancellor could rescind a judicial sale by a common law court aud at the instance of a purchaser who had taken the risk of the title, can be known only to those who are familiar with the practice in that state. Still the question regarded amendment, and no one dreamed of treating the return as a nullity. In Stoyel v. Cady, 4 Day 222, there was neither return nor sale, but payment extorted by an illegal levy, which was of course discharged by the receipt of the debt. None of those cases, then, resemble the present; and in Whiting v. Bradley, 2 N. H. Rep. 79, in which the scire facias was founded on a statute, every thing said by the judge who delivered the opinion of the court in relation to the principle of the common law, was extrajudicial, and, it seems to me, without foundation in authority. That the return on a fieri facias is always parcel of the record, is unreservedly asserted in 2 Saund. 344, n. 2; and that it is conclusive betwixt the parties, is as plain, from the assertion that nil debet can not be pleaded to an action of debt on it. It may, indeed, be impeached, when put in issue; but can it ever be in issue betwixt the parties to the action? The cases cited to the contrary prove that it can not; and instances of its conclusiveness in regard to strangers, are not to the purpose. On the common principle of estoppel, it concludes only parties and privies, and can therefore be falsified by any one else—a distinction to which the American courts seem not to have duly attended-but can any man lay his finger on an Eng