#### MATTHEW WICKER v. KENNETH H. WORTHY.*

Mero silence on the part of a sheriff as to the existence, in his hands of a prior lien oh property sold in his presence, will ‘not-subject' him’to an aclion of deceit, but if he'does or says any thing intended or calculated to mislead a ’’ purchaser, in this respect, die is liable.

Enquiring-from the sheriff, and reliance,on-his information as tó.the nature of , the liens and levies of executions, in his hand?, .on property, offered for sale in. his presence, is certainly the exercise of reasonable caution and diligence, as this is,a,matter peculiarly within his knowledge.

Action on the case for a deceit, tried before Dick, J., at the last PalbTérm of’ Chatham-Superior*-0ourt:

The defendant, who was the sheriff of Moore'county, was .present afra sale of property,-made by the agent of one Bry*501ant, the owner. About the commencement of the sale, a question arose among the bystanders, whether there was not some prior lien on it by virtue of an execution in the hands of- the sheriff; whereupon, Bryant stated that this liad been the case, but those liens liad been discharged, and lie called upon the defendant, as sheriff, to make a proclamaron to that effect, and to state that the sale might proceed without danger to the purchasers; this the defendant declined doing; upon which Bryant said, he would do it. Before the sale began, the crier, one Brown, made a public declaration, addressed to the bystanders, to the effect “that arrangements had been made whereby good titles would be made for the property about to be sold.” The defendant was in hearing of this proclamation and said nothing. Much property was sold before the land in question was put up. lyiien it was offered, the crier and one Murchison, an uncle of the defendant, both made proclamation that there was no dispute about the title to this tract; this occurred in the presence and hearing of the defendant. Very shortly before the sale of the land in question was begun, the plaintiff and defendant were seen conversing privately, and just as they separated, the defendant stepped forward and commenced bidding for the land, as the agent of the plaintiff. After bidding some time, he'ceased, when the plaintiff took it up, in person, and ran up the price .to $250, when it was knocked off' to him at that price. This sale took place on the 20th of December, 1853. At the next term of Moore County Court, which was in January, 1854, the defendant, as sheriff, returned an execution against Bryant, in favor of one Buie, levied on the same land, under which it was afterwards sold by him and conveyed to the purchaser, (Buie.) An action of ejectment was immediately brought by Buie, against the plaintiff, which, after pending for some time, was compromised by the payment of $400 by the plaintiff. Bryant was indebted to the defendant — how much did not appear — -and Murchison, above spoken of as the defendant’s uncle, was deeply involved for Bryant, who has since failed. There was no evidence that the defendant said *502any tiling in reply to tlie public declarations of Bryant, or of Murchison', or the crier, about the title of the land, or the discharge of the previous levies.

The Court charged the jury that if the defendant, by his conduct, had intentionally deceived the plaintiff, as to the existence of the levy on the land, he would be responsible to the plaintiff, unless the latter had shown a want of ordinary prudence in informing’ himself as to the state of the matter; and upon that point lie charged that the plaintiff was bound to know of the judgments against Bryant, (including Buie’s,) and that executions had issued thereon, but that after charging himself with such information, it was a due pursuit of inquiry to resort to the sheriff for further information, and to rely upon his truth and fairness in the transaction. The defendant’s counsel excepted.

Yordiot for the plaintiff. Judgment. Appeal.

Ilauyhton, for the plaintiff.

Mrnly and Phillips, for the defendant.

*

This case was attempted to be reported at page 221, ante, but the Reporter so entirely misapprehended the case sent up, as -to make it propér to report it again.

PeARSOh, C. J.

Mere silence on the part of a sheriff, in respect to tlie levy of an execution which he has in his hands, when property subject to its lien is exposed to sale in his presence, is not sufficient to make him liable in an action on the case for a deceit. But if he says or does any thing intended and calculated to create the impression that there is no lien, and that a purchaser from the defendant in the execution will get a good title, he will be liable to the action.

There was evidence in this case tending to prove the deceit which ought to have been left to the jury, i. e., the proclamations made by the crier and Murchison, when the tract, of land was offered; the private conversation between the plaintiff and defendant, and the defendant’s lidding for the plaintiff, and other circumstances, such as the fact that the defendant in the execution was indebted to the defendant, and that his uncle, Murchison, who had busied himself about the sale, was deeply involved on his account.

*503We also concur with his honor upon the question of law. Cmeat emptor is the rule in actions for deceit; but the fact of a levy or of the intention of the sheriff to insist upon the lien, of the execution, or to forego it because of certain arrangements which the defendant in the execution had made, and upon which the sheriff was willing to rely, so as to permit a sale, are peculiarly within the knowledge of the sheriff, and even a very cautious man might reasonably rely upon his representations in regard to them. There is no error.

Pee Oueiam, Judgment affirmed.