EJECTMENT for 306 acres of land in Northumberland county. The
case was this: On the 13th of September 1774, John Read, being
seised in fee, mortgaged the premises, mentioned in the
declaration, to 'The trustees of the general loan office of the
province of Pennsylvania,' incorporated under the act of the 26th
of February 1773. 1 State Laws, 644. Dall.
Page 4 U.S.
218, 219
edit. After various successive modifications of this trust,1 the
powers and duties of the trustees were transferred to, and vested
in, the treasurer of the state, by an act of the 1st of April 1790.
2 State Laws, 792. s. [
Footnote
2] The sheriff of the county, in his evidence on the trial,
stated, 'that he had received a precept, dated in September 1792,
for selling the lands, under Reed's mortgage, from the office of
Mr. Febeiger, the state treasurer; that the precept, he believed,
was signed by Mr. Febeiger, and attested by Mr. Ingersoll, the
attorney-general; that he delivered the precept to Mr. Febeiger's
clerk (who, it appeared, had left the country) indorsed, he
believed, (though he was not positive) with a written return, as it
was his practice to make such indorsements; that he thought he had
put up printed advertisements of the time and place of sale; and
that he made the sale on the premises.' It was proved, however,
that, on a strict search of the loan office papers, no precept, in
the present case, could be found, except one, which had no date,
and which was not signed by Mr. Febeiger. And an advertisement of
the sale, to be made on the 11th of December 1792, was read from
the Sunbury, and Northumberland, gazettes, dated the 6th of October
preceding. At the sale, Thomas Reese became the purchaser, to whom
the sheriff made a deed, on the 22d of February 1793, for the
consideration of 189l. 7s. 6d. and, on the 20th of March 1793,
Reese conveyed to the lessors of the plaintiff, for the
consideration of 160l. But, it was alleged by the defendants, and
evidence was given tending to show, that Reese had been collusively
employed by Richeson, one of the lessors of the plaintiff (the
others being totally ignorant of this part of the transaction) to
make the purchase for him, while, at the time of the sale, he set
up a title to the premises, producing a deed from the county
commissioners, dated the 26th of November 1792, when the land had
been sold for taxes; menacing any purchaser with a law suit; and,
in fact, prevented several persons from bidding, who had attended
for that purpose; and some of whom avowed, that they would give
350l. for only 200 acres of the land.
On these facts, the defendant contended, 1st. That the authority
of the state treasurer, was a special authority, and ought to be
strictly pursued: whereas there was no official precept, as
required by the act, to justify the sheriff's sale; nor any proof
of advertisements put up at public places. 2d. That the fraud
committed by Richeson at the time of sale, vitiated the whole
proceedings; particularly, when connected with the inadequacy
Page 4 U.S.
218, 220
of the price. Cowp. 26. Hal. Hist. Com. Law, 49. Cowp. 434. 2
Pow. Cont. 144. 163. 1 Br. Chan. 163. The plaintiffs answered, that
the weight of the evidence was in favour of the regular
advetisement of the sale; that the blank precept, now produced,
could not have been the precept, under which the sheriff acted, as
he swears that his precept was signed by the treasurer, and
attested by the attorney-general; that the loss of the precept
being evident, its existence and regularity are legally proved by
the sheriff; that it might, perhaps, be contended, that the
production of a written precept was not indispensable in this case;
1 Ld. Raym. 166. 5 Mod. 387. 2 Salk. 467. that Richeson was bound
to give notice of the commissioners' deed, whatever effect it
produced on the sale; that this was the only ground to impeach the
sale; and that fraud ought not to be presumed.
SHIPPEN, Chief Justice. There are two points of inquiry before
the Court and jury: 1st. Whether the proceedings upon the sale have
been regular? 2d. Was there such an act of fraud, unfairness, or
contrivance, at the time of the sale, as ought to vitiate the whole
transaction? 1st. It is alleged, on the first point, that there was
no precept authorising the sale; and it is proved, that, on search,
a regular precept has not been found in the treasurer's office. We
think, that a precept was necessary to support the sale; and that
the paper, which has been produced, was not a regular precept. But,
on the other hand, the sheriff swears, that he received a precept
signed by the treasurer; and it is not probable, that he would have
sold an estate under a blank form. As, therefore, the party has not
the custody of the precept, and ought not to be made responsible
for its loss; the jury will consider, whether there is not
sufficient evidence, to presume the existence of a regular precept,
at the time of the sale. It has, also, been urged, that there is no
proof, that advertisements of the sale were posted up at public
places; but, if the sale was a fair one, we regard this, as a very
feeble objection. The act of making such advertisements, is the
duty of the sheriff; it is a matter merely directory; and, unless
an actual injury has been sustained by an omission, it would be
hard, indeed, that it should affect the title of a bon a fide
purchaser. 2d. The chief ground of defence, however, is the
allegation of fraud at the sale; and if Richeson did then attempt
to get the land unfairly, he ought not to be allowed to benefit by
his iniquity. It is always a mark, prima facie, of unfairness, when
a man, who forbids a sale, or slanders a title, becomes himself the
purchaser of the land. It is true, that Richeson might be bound to
give notice of the commissioners' deed; but did he confine himself
to giving a fair notice of the claim, without any sinister
design,
Page 4 U.S.
218, 221
or conversation, or action, to depreciate the estate, and to
secure it for himself at an undervalue? No: he employed another
person, secretly, to bid for him, while he deceitfully threatened
his own bidder, and seriously threatened every other bidder, with a
law suit. And, wherever there is an appearance of fraud, the
inadequacy of price, though not conclusive in itself to avoid a
sale, affords an argument of great weight against a purchaser, to
whom the fraud is imputed.
Here, then, it is important to remark, that from the special
nature of the proceeding under the treasurer's precept, the
defendant had no opportunity of applying to any Court, for
immediate relief: but we do not hesitate to declare, that if a case
were brought before us, under such circumstances, we should
certainly set aside the sale.
It now, however, becomes the province of the jury to decide upon
the evidence, whether Richeson's conduct was fair and proper;
without a sinister view to get the land at an under price. If they
think it was, the verdict will be in his favour. If they think
otherwise, the defendant must prevail.
Verdict for the defendant. [
Footnote 3]
Footnotes
Footnote 1 See the note (h)
subjoined to the act above cited. 1 vol. 644.
Footnote 2 By an act of the
11th of April 1793, a grant was made to th e Pennsylvania hospital,
payable out of the money due to the loan office; and the managers
of the hospital were constituted trustees, for the purpose of
collection. 3 State Laws, 379. Dall. edit.
Footnote 3 Tried in the
Circuit Court, Northumberland county, on the 17th of Oct. 1800,
before SHIPPEN, C. J., and BRACKENRIDGE, J.
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