England v. Clark

Citations

• 5 Scam. 486

Syllabus

<p>Error to Menard.</p> <p>X. Execution — levy on stianger's properly. The writ offieri facias commands the officer to take the goods of the defendant m execution. If he takes the goods of' a stranger he is a trespasser, (a) </p> <p>2. Caveat empi or — applies to judicial sales. The general rule of caveat emptor applies to the sale of lands, to all judicial sales, whether made by marshals, sheriffs, their deputies, constables, or special commissioners appointed by the courts ; and the rule not on ly discharges the officer who may make the sale, but equally protects from an implied warranty the plaintiff and defendant in execution. The rule is founded in public policy; but there are exceptions to it, which in no way con- [*487] travene that policy. The officer or parties may go beyond the obligation imposed by law, and so bind themselves by express undertakings, by fraud, etc.; and so a stranger may bind himself, or prejudice his claims, by fraud, etc.</p> <p>3., Right of action — attaches to legal or equitable obligation. Semble, That where a plaintiff is in justice and conscience entitled to a thing or sum of money of the defendant, he may recover it; not where there is simply a moral obligation, but where there is a legal or equitable obligation on the defendant to let him have it.</p> <p>4. Bankruptcy — recovery of money made on execution. Semite, That where a sheriff levies upon the estate of a bankrupt, after a secret act of bankruptcy, although unknown to him, and sells the same, and pays over the proceeds, the assignees of the bankrupt may recover it back.</p> <p>5. Execution — sale of exempt property. Semble, That where a constable sells property not liable to execution, if he has not paid over the purchase money it may be recovered back of him. (b) </p> <p>6. Same — failure of title. The plaintiff in an execution is not liable to an action by the purchaser of personal property on execution, the title of which fails. Quere, Whether such action can be sustain