Powell v. The Governor, ex rel.

Lord Ellenborough said, if the goods taken in execution really were worth £300 or £400, he thought the sheriff was liable for selling them for £72. The return ought to have been, that he had taken goods, which remained in his hands for want of buyers. If a chattel worth £1000 is put up to sale, and only £5 is bid for it, the sheriff ought not to part with it for that sum, and he may fairly say it remains in his hands for want of a buyer. He ought to wait for a venditioni exponas, the meaning of which is, "sell for the best price you can obtain." See also, Watson on sheriffs, 199. But, although it is thus held, that a sheriff is not obliged to sacrifice the property of a debtor at a greatly under-price, he will not be justified in capriciously returning that the goods remain unsold, when he has not taken the necessary and proper means to expose them to a fair sale. [Barnard v. Leigh, 1 Stark. N. P. C. 41.] In the present case, we are not informed what the lands produced, but it appears, that immediately after the sale, the sheriff effected an additional levy on slaves, amply sufficient to discharge the executions, which were released, as they lawfully could be, upon a forthcoming bond. This, we think, was the exercise of all the diligence which the law requires of the officer, unless there is some statutory regulation, which imperatively requires the sheriff to levy on slaves or other personal property when that can be had, instead of land; or unless he is bound to proceed and sell at the first sale day after the levy is made. We shall consider each of these positions in its order.

3. An act passed in 1807, by some of its terms, would seem to indicate that a levy should first be made upon goods and chattels, but it was passed solely with reference to nonresident debtors, and made their lands subject to levy and sale, when those belonging to a resident were exempt. [Clay's Dig. 205, § 16.] This appears from the general statute subjecting lands, &c. to execution, having been passed four years afterwards. [Ib. § 17.] In practice, there is no reason why the sheriff should levy upon the personal goods of the debtor in preference to his lands, when these are amply sufficient to produce the necessary sum. Indeed, it frequently would be unnecessarily oppressive, to compel a perfectly solvent person, to produce and replevy his slaves or other per

Powell v. The Governor, ex rel.

In

sonal estate, when his lands will afford equal security. this respect, however, as in all others, the sheriff would not be permitted to excuse himself, whenever it became obvious that this mode of levy was selceted, not as the means of actually providing for the collecting of the debt, but to give ease and favor to the debtor. We conclude then, there is nothing in our statutes which takes from the sheriff the discretion to levy upon either description of property.

4. With respect to the time when the sheriff shall sellthis seems to be left to his discretion, at least so far that he may do so upon any of the sale days which intervene between the period when the execution is placed in his hands, and the return day of the execution. The act of 1818, indeed, provides, that the sheriff shall proceed to levy any execution in his hands, and make sale of the property levied on, at such times as by law is directed; but the chief object of the statute seems to be, to make the sheriff liable for not paying over the money when collected, instead of ascertaining and directing that it shall be made forthwith. [Clay's Dig. 205, 21.] The act of 1812, which directs the sheriff to return the property levied on to the debtor, upon his entering into a forthcoming bond, does not indicate that the bond shall be for the production of the property at the first sales day, but seems to allow the sheriff to appoint the day, according to his discretion. The act of 1826, which gives the summary remedy by motion, evidently contemplates that the officer has the whole time between the issuing of the execution and its return day, to make the money, as it authorizes the motion only when the failure continues to the first day of the term. [Ib. 218, § 85.]

When the extent of the business in some counties is considered in connection with this subject, it will be seen how onerous would be the duties of this officer, if he was bound at his peril, to levy and sell on the first sales day. If such were the law, it would be difficult to discharge the duties of the office in person, in most cases, or in many, to exercise an efficient supervision over the necessary deputies. Independent of this, we think the legislative intention has never yet been evinced, that the sheriff shall, under all circumstances, conclude the business of executions as soon as it was possi

Evans and Arrington v. Keeland.

ble to do so. If such had been the intention, different return days would have been provided. We therefore conclude, that the sheriff has the discretionary authority to sell upon any of the sale days previous to the return day of the execution, which he is required to satisfy. Upon the facts in evidence, we think it should have been left to the jury to determine, whether the lands levied on were of value sufficient to authorize a prudent man to suppose they would produce, at public sale, a sufficient sum to satisfy the relator's execution, as well as those which created a prior lien; and that if they were of such value, the defendant is not liable to this action, if the sheriff, within a reasonable period after the sale, re-levied the execution upon other property of value sufficient to satisfy it.

As the charge does not conform to this view of the case, the judgment is reversed and remanded.

Decided at June term, 1845, and omitted by mistake.

9 42 111

9

113

42

j133 562

EVANS AND ARRINGTON v. KEELAND.

1. The undertaking of a surety, is accessorial to that of his principal, and if the principal admits the contract to be binding ou him, it is also binding on his surety, unless there be a fraudulent collusion between the debtor and creditor, to charge the surety.

2. A surety may avoid his contract for a fraudulent concealment, or misrepresentation of facts by the creditor, to induce him to become surety, although the contract for which he was bound as surety, is binding on his principal.

3. A misrepresentation which will have this effect, must be the false asser tion of a fact, and not the expression of an opinion, of the value, or quality of the property sold. Thus, a declaration by the vendor, that the land he was selling, was as good, or better than other tracts to which he referred; that there was a comfortable dwelling-house, good out-houses, peach orchards, &c. on the land-is the expression of an opinion, and not the assertion of a fact, the incorrectness, or falsehood of which, would enable the surety to avoid his contract.

Evans and Arringtan v. Keeland.

Error to the Circuit Court of Sumter.

DEBT on bond, by the defendant, against the plaintiffs in error. The defendant, Evans, permitted judgment to go by default, and Arrington pleaded in short by consent, fraud, and failure of consideration.

Upon the trial of these issues, it appears by a bill of exceptions, that the bond sued on, was the last of four executed by Evans, to one Bolling, for the purchase of a tract of land, negroes, horses, cattle, &c., and that Arrington was the surety of Evans. That in a conversation which took place in the house of Arrington, in the year 1837, when Bolling and Evans were bargaining for the property, one of the parties called in Arrington, to go Evans' security for the payment of the purchase money, when Arrington remarked, he did not like to put his name to such papers unless he had seen the land, and knew more about its quality. That Bolling then said, that Arrington need feel no apprehension, in signing the papers, and that the land was as good, or better, than some they had been talking about, and had seen the day before belonging to Bolling's father and one Willis Crenshaw. Bolling also stated, that there was a fine garden, good peach orchard, and fine improvements, a comfortable dwelling-house, and good smoke-house, stable and corn crib, and that one of the negroes sold was a good cook, house servant, and seamstress. These statements were made in the presence of Evans.

Evidence was then offered, tending to show, that the land was of inferior quality, and not so good as that of old Mr. Bolling, or Willis Crenshaw-that the buildings and improvements were inferior to what Bolling represented them, and that the negro girl was no seamstress, but a common field hand. There was also evidence tending to the conclusion, that two hundred acres of the land mentioned in the bond for title, was at the time of the sale, and still in the possession of, and belonging to other persons, and that the title to four hundred acres of the land, was not complete at the time of the sale; but has since been obtained by Bolling. That Bolling offered to take back the negro sold as a seamstress, but that Evans would not consent, unless he would take back all the other property.

That Evans offered to rescind the contract

Evans and Arrington v. Keeland.

in the fall of 1837, at which time he had used, and consumed all the property, except the slaves, and abandoned the possession in the fall of 1838, of which he gave no notice. That in the fall of 1839, Evans charged Bolling with fraud in the sale-that Bolling told him to say nothing about it, that speculation was high, and he would help him to get it off on some one else, but denied the charge of fraud.

Upon this state of facts, the Court charged the jury, that if fraud by Bolling, the vendor, was clearly made out, it vitiated the contract as to the principal and security-That payment was resisted ou the ground of fraud, and defendant might avoid the contract, either by a speedy repudiation of it, at an early day after the fraud was discovered, and a tender back of the property bought; or in regard to personal property, might insist upon a deduction, or might sue upon his warranty, if he have one-That Evans did not offer to rescind, and the contract being executory, had no warranty to sue upon-That the surety seeks to avoid the contract entirely, and the question is, has he made out his case?

From the form of the note, the contract is the same on Evans, and on Arrington, yet if Arrington was induced by the fraudulent representations of Bolling, to sign the note, that would avoid it as to him. That the case of such fraud as would avoid Arrington's liability, may be illustrated thus: If Bolling had represented to him that the note was given for land, and it was in fact given on a gaming consideration, this would be such a misrepresentation; but the vendor had a right to make any representation he might see proper, as to the quality of the property, and if the security chose to rely on it, it would not avoid his liability, because it was his duty to have examined into the matter himself: it is expected that all the parties will look out for themselves-sureties as well as principals. Still, the law extends more indulgence to the surety, than to the principal, and if they do not so enquire, the misrepresentation will not be a fraud. But if the surety could not have ascertained the truth of the representations by vigilance, he then might be relieved; but if by vigilance he could have informed himself of the truth of the facts, but chose to rely on the representations of Bolling, he cannot.