#### BUCKNER L. HILL et al., vs. HATCH WHITFIELD et al.

■A -sheriff’s deed is not mado void at law by the fraudulent conduct of the plaintiff in the execution, (as, by suppressing competition at the sale and thereby getting the property at an undervalue,) there being no collusion ■between the sheriff and the purchaser.

In such a case, the deed passes the title to the purchaser, and the defendant must seek his remedy in a Court of Equity.

Action of ejectment, tried before his Honor, Judge Bailey, at the Spring Term, 1855, of Sampson Superior Court.

The land in question was sold at sheriff’s sale, under an execution upon a judgment in favor of ¥m. A. Whitfield as relator, against the defendant Hatch Whitfield, who had been his guardian, and Lemuel Whitfield, and bought by Wm. A. Whitfield. The judgment was for the sum of $2,300, taken in the County Court of Wayne, and duly proved by the transcript of the record of that Court. The execution, the levy and sale by the Sheriff were also proved, and the plantiif produced the sheriff’s deed for the land in question. It was admitted on the trial, that this land was the property of the defendant in the execution, Hatch Whitfield, who is also the defendant in this action, and that he was in possession at the beginning of this suit. There were several coterminous tracts conveyed in the deed, amounting in all to about six thousand acres, and the whole was worth $12,000. The price bid and credited on the execution was $2,000. „

*121The defendant resisted a recovery, upon the ground, that the sale was made void by the fraudulent conduct of the lessor of the plaintiff, Wm. A. Whitfield, in suppressing competí^ iion, and that the deed made in pursuance thereof was void, and passed no title. To support these positions, he examined several witnesses, viz:

Eedar liaiford, who stated that on Wednesday of the term ■of Wayne County Court, the Sheriff, at the instance of Wm. A. Whitfield, sold the land en masse, he (witness) requesting him to sell in separate tracts, or sell the negroes, if he must have money; that Wm. A. Whitfield, before the sale of the land, in the presence of a number of persons there assembled, ■said he did not want any person to bid for the land, that he only wanted to bring his brother, Hatch Whitfield, (who was then in Mississippi, where he resided,) to a asettlement; and he feared if any other person bid off the land, he would not let him have it back; that he wanted Hatch to have the home place, and would sell the outskirts of the land to pay his debts. All this was said in the presence of the sheriff, and loud enough for him to hear it; but witness could not say whether or not he did hear it. lie further testified, that Wm. said, Lemuel had put money in Hatch’s hands to pay this debt, and he did not want Lem.’s property to be sold. The land was 2>ut up, and ho, (witness,) who was the son-in-law of Hatch Whitfield, bid §3,500 ; but he could not raise the money, and the land was resold, and bid off by Wm. A. Whitfield at §2,000, no person bidding against him. He further stated, that Hatch Whitfield had four or five slaves on the land, worth §1,500, besides stock, and other property; and that Lemuel Whitfield, the other defendant in the execution, owned several slaves, but was in failing circumstances.

William E. Lane, stated that he attended the sale for the purpose of buying the land, and would have paid more for it than it was sold for, but did not bid, in consequence of the. declarations made by Wm. A. Whitfield, as proved by the other witnesses.

John Liverett, stated that he heard Wm. A. Whitfield say, *122before the clay of sale, and at the time of the sale, that he did not want any one to bid for the land; he only wanted to buy , the land to bring his brother to a settlement, and that he would let him have it back. Lemuel II. Whitfield, the other defendant in the execution, begged Wm. not to sell the land; that if he must have money, to send for one of his negroes and sell him. He (Lemuel) further stated he had placed money in Hatch’s hands to pay the debt.

Cabin Coor, stated (in a deposition) that he was the sheriff that sold the land; that he advertised it, and sold it at the court house in Wayne County; that there were many persons present, and that the sale was a fair one as far as he knew ; that he did hear Wm. A. Whitfield say, in one part of the transaction, that he would bid off the land as a brotherly act to bring Hatch to a settlement.

There was no evidence of fraud or collusion on the part of the sheriff, or of combination with the purchaser.

It was proved that about one-third of the land in question had been sold to the lessor of the plaintiff, B. L. Hill, by Wm. A. Whitfield, and that he had paid in cash for it $-.

Upon these facts, his Honor charged the jury that, if Wm. A. Whitfield, the plaintiff in tire execution, made representations at the time of the sale of tire land, so as to induce persons who attended for the purpose of buying, not to bid, and thereby suppressed the bidding, and the representations were false, and in consequence thereof, persons did not bid, and he was enabled to buy the land, greatly under its value, for himself, and not for the defendant, Hatch Whitfield, the sale would be fraudulent and void, and the deed would pass no.title to the lessors of tire plaintiff. To this charge the plaintiff excepted.

Yerdict and judgment for defendant. Appeal by plaintiff.

Bryan, with whom were W. A. Wright, Shepherd and Winslow, argued for plaintiff as follows:

The remedy of the defendant if he have any, is in Equity. The sale here is under valid process, and there is no fraud or collusion between the sheriff, who is the authorised vendor, *123and Vm. A. "Whitfield, the purchaser. The execution of the official deed of the sheriff, therefore, conveys the title at law.

It is contended that ¥m. A. "Whitfield committed a fraud, inasmuch as he did’ not. comply with his promise, which promise prevented competition at the sale. But that title either passed or it did not, at the instant of the sale, and the subsequent conduct of the purchaser could not reflect back and change the character of the sale.

The title of Hill is good, both at law and equity. It is conceded that he was not privy to the fraud, if any there was; and being a bona fide purchaser, for value, and -without notice, he is protected.

Reid, Sbramge, and W. B. Wright, for defendant.

Pearson, J".

There is no doubt that "William A. Whitfield did suppress competition at the sale made by the sheriff, and that, in consequence of his representations that his object was to buy the land merely to compel Hatch Whitfield to come to a fair settlement, several persons who were present, willing and able to buy the land at a fair price, were induced not to bid, whereby lie was enabled to bid off the land at a sum greatly below its value. Upon this ground, the sheriff might have refused to make him a deed and offered the land for sale again ; but the sheriff recognised him as the last and highest bidder, and executed a deed, the effect of which -was to vest in him the legal title. There is no proof of collusion between the sheriff and William A. Whitfield; so, there is no ground upon which, in a Court of law, the deed can be considered void and of no effect. Consequently, the legal title passed, and the lessor of the plaintiff having acquired that title, the defendant could not, in a Court of law, resist a recovery.

The judgment of a Court of law is absolute and positive, -whereas the decree of a Court of Equity is pliable, -and may be modified and shaped so as to mete out exact justice to both parties; hence, the former only looks to the legal title, and never interferes, except in cases when the conveyance is void and of no effect—e. g.,'if a sheriff, or other public officer, pur*124chase at his own sale—whereas the latter will cany the investigation beyond the legal title, and if the “ actings and doings,” although not void and of no effect, are tainted with fraud, will take jurisdiction, relying on its ability to see that justice is done to both parties. Eor instance, in our case, if the rough hand of a Court of law takes hold of it, and the deed is considered void, ’William A. Whitfield must lose his $2,000, which was applied to the satisfaction of the debts of the defendant in the execution; whereas, in a Court of Equity, the deed may be considered as valid, so as to pass the legal title ; but, by- reason of the fraud in suppressing competition, the purchaser will be converted into a trustee holding the legal title, first, as a security for the money which he actually paid in satisfaction of the debts of the defendant in the execution, and then in trust for him; so that in this way, the avowed purpose of William A. Whitfield to bring his guardian to a fair settlement,—which purpose was a legitimate one, and induced others not to bid,-—will be effected without injury to either party. Yeni/re de novo»

Per Curiam.

Judgment reversed.