VENDOR'S LIEN DOES NOT ACCOMPANY A TRANSFER OF THE NOTE given for the purchase money. The principal case is cited to this effect in Webb v. Robinson, 14 Ga. 224, and Baum v. Grigsby, 21 Cal. 176, 177; see Hall's Ex'rs v. Click, 39 Am. Dec. 327, where prior cases in this series are collected. But see contra, where vendor retains legal title in himself: Graham v. McCampbell, 33 Id. 126. Ir Webb v. Robinson, 14 Ga. 224, the principal case is also cited, to the effect that where a person purchases land, with notice of the vendor's lien, he takes it subject to the trust; and in Murray v. Jones, 50 Id. 119, to the effect that a transfer of a note passes a mortgage which is incident thereto.

VENDOR'S LIEN, NATURE OF.-Doctrine of vendor's lien is borrowed from the civil law: Lupin v. Marie, 21 Am. Dec. 256; and is of equity jurisdic tion: Armstrong v. Mudd, 50 Id. 545.

HARRISON V. MCHENRY.

[9 GEORGIA, 164.]

PURCHASE BY TRUSTEES OF PROPERTY OF CESTUI QUE TRUST, whether made at public or private sale, is voidable only. The cestui que trust must make his election to set aside such purchase within a reasonable time.

AGENT EMPLOYED TO SELL CAN NOT HIMSELF BECOME THE PURCHASER; and an agent employed to buy can not himself become the seller. SHERIFF IS AGENT, APPOINTED BY LAW, OF BOTH PLAINtiff and Defend

ANT, for the sale of defendant's property, and a purchase of such property made by him is absolutely void, and yields to the title of another acquired by a subsequent sale of the same property.

SHERIFF CAN NOT ACT AS DISCRETIONARY AGENT to purchase at his own sale.

ACTS OF PERSON ASSUMING ILLEGAL AGENCY can not be subsequently ratified.

SALE OF PROPERTY UNDER JUNIOR FI. FA., in this state, defeats the lien of an older judgment upon the same property. The older judgment may come in and receive the money raised by the sale.

EJECTMENT. Plaintiff McHenry obtained a fi. fa. against Harrison et al., and caused it to be levied on real property. At the sale, the sheriff, under instructions of McHenry's agent, bid in the property, and afterwards conveyed it to McHenry. Subsequently said land was again sold under a fi. fa. against Harrison et al., of older date than McHenry's fi. fa., and was bid in by one of the defendants, who received the sheriff's deed. The court decided in favor of McHenry's title, and defendants excepted upon the grounds stated in the opinion.

Martin and Peeples, for the plaintiff in error.

W. H. Underwood, represented by Hull, for the defendant.

By Court, NISBET, J. The presiding judge instructed the jury, that if they believed that the sheriff was the agent of the plaintiff, McHenry, at the time of the sale, and bid off the property for him as such agent, they would be authorized to find for the plaintiff.

The exception to this instruction makes the question, whether the sheriff, at a sale under execution, conducted by himself, can act as agent of an absent person in the purchase of the property. It was assumed in the argument, and the assumption seems to me to be indispensable to the power claimed for the sheriff in the instruction, that it is competent for him to make a valid purchase at his own sale. If he can buy on his own account, it would seem that he can also purchase as agent for another; and if he can not buy on his account, he can not purchase as agent for another. At least, some of the reasons which forbid his buying on his own account, equally forbid his acting as agent. Trustees, generally, are unable to buy the property of their cestui que trust. The purchase is not in their case void per se, but the cestui que trust may come in, as a matter of right, and set it aside. He may do this, whether the sale be bona fide or not. His right to set it aside does not depend upon the fairness of the transaction. The honesty of the trustee has nothing to do with it. The object of the rule is to secure fidelity in the trustee to the interests committed to his hands. To secure this, the law does not abrogate his purchase because it was fraudulent and injurious to the rights and interests of the cestui que trust, but goes upon the idea that he shall not be subjected to the temptation of violating his trust by committing a fraud. It shields him from the temptation, by declaring him incapable of making a purchase which will bind those whom he represents; and it gives them the option of vacating or affirming the purchase, according as they may consider it their interest to do the one or the other. This election the cestui que trust must make in a reasonable time. He may affirm it, and then it becomes unimpeachable. A distinction was at one time sought to be made between a private sale and a sale at auction.

The rule, however, is now well settled, as applying to both kinds of sale. Such is the law of this court: See Worthy et al. v. Johnson et al., 8 Ga. 241, 242 [ante, 399], and the authorities there referred to. The whole subject is discussed by Chancellor Kent in Davoue v. Fanning, 2 Johns. Ch. 252, in an opinion which is unsurpassed for its learning and ability, and in which it is set

tled that it makes no difference, in the application of the rule, that the sale was at public auction and bona fide, and for a fair price. Nor can there be a doubt about its application to sheriff's. The sheriff is a trustee for the defendant in execution, by virtue of his office. When personal property is seized in execution, he acquires a property in it. He can maintain trover for it, even against the defendant himself; and where real estate is levied upon, he acquires a qualified property in that. All of which he holds in character of trustee for the owner; and being trustee, the obligations and disabilities of a trustee devolve upon him: Lazarus v. Bryson, 3 Binn. 54; Davoue v. Fanning, 2 Johns. Ch. 252; 2 Fonbl. 447, note.

If the sheriff be viewed in the light of a mere agent, he can not purchase at his own sale. He is the agent of the defendant in execution, appointed by the law, for the purpose of selling his property to the best advantage and to the highest bidder. His principal is entitled to his best ability and his perfect integrity in the discharge of the duty which the laws devolve upon him. The law of agency is, that the principal bargains for the exercise of the disinterested skill, diligence, and zeal of the agent for his exclusive benefit." He can have no interest and do no act adverse to the interest of his employer, or incompatible with the application of his best skill, zeal, and diligence to the promotion of that interest.

66

The privilege to an agent of buying the property he is engaged to sell, is utterly incompatible with the obligations owing to his principal. The interest of the principal is that he obtain the highest price, and it is the duty of the agent to sell it for the highest price. It is the interest of the purchaser to buy at the lowest price, and he is presumed to bid with reference to his interest. Emptor emit quam minimo potest; venditor vendit quam maximo potest. If, then, the sheriff, who is the agent of the defendant, were permitted to purchase at his own sale, his duty to his principal and his own interest would stand in direct opposition. Either he must violate the duty which he owes to his principal, or exercise a virtue rare amongst men-that is, sacrifice his own interest to that of another. To avoid this collision of interest, and to prevent a temptation to infidelity in his trust, the law imposes upon him a positive prohibition. It is well settled that an agent employed to sell can not himself become the purchaser; and an agent employed to buy can not himself become the seller: 1 Paley on Agency, by Lloyd, 33, 34, 37; 3 Chitty on Com. and Manuf., c. 3, pp. 216, 217; 1 Liv

ermore on Agency, c. 8, sec. 6, pp. 416-433; Lees v. Nuttall, 1 Russ. & M. 53; S. C., 2 Myl. & K. 819; Pierce v. Thompson, 6 Pick. 196; Reed v. Warner, 5 Paige, 650; Lowther v. Lowther, 13 Ves. 103; Reed v. Norris, 2 Myl. & Cr. 374; Beal v. McKiernan, 6 La. 407; Story on Agency, secs. 210, 211.

This reasoning applies with more than ordinary force to the sheriff, who is the appointee of the law and a public agent, and because he is not alone the agent of the defendant, but also of the plaintiff in execution. He is the plaintiff's agent to collect his money by the sale of the defendant's property. It is in many cases the interest of the plaintiff that the property shall sell for the highest price, as where the whole property of the defendant, at a fair price, is either barely enough or not enough to pay his judgment. Any infidelity in the sheriff in such cases, in not bringing the property fairly into market, is an injury to both plaintiff and defendant; and he violates his duty to both. The right to purchase is in contravention of the policy of the law. The state has a right to require skill, diligence, and fidelity in her agents. The paramount good of the whole people requires that she should exact all these things. To secure them, it is wise to prohibit the sheriff from buying. It is her duty so to regulate the execution of the laws, as to prevent injustice to the citizen, and to remove temptations from those who are chosen to execute them. The sheriff accepts office-it is not forced upon him. He can not, therefore, complain of the disabilities which are incident to it. All these considerations derive strength from the fact that, at sheriff's sales, there are peculiar facilities for the officer to perpetrate frauds without detection. This facility to do wrong, and this difficulty of detection, give almost resistless force to the temptation. The disability of a selling agent of the court, to purchase property which he is required. to sell, was held by the house of lords, in the case of York Buildings Co. v. Mackenzie, 8 Bro. P. C. 42, which Judge Kent pronounces one of the most interesting cases, on a mere technical rule of law, that is to be met with in the annals of our jurisprudence.

It vindicates the doctrine we now hold, the more especially as the agent of the court, appointed in that case to sell the property of an insolvent company, for the benefit of creditors, occupied the position which the sheriff occupies in this case. It is our judgment, therefore, that a purchase by a sheriff is absolutely void, and yields to the title of another acquired by a subsequent sale of the same property. In Barker v. Marino

Ins. Co., 2 Mason, 371, Judge Story, in pronouncing upon the validity of a sale by the master of a ship, acting as agent for the owners, where he became the purchaser, says: "As to the first point, it appears to me that the sale wrought no change in the title of the property whatsoever. It was a merely inoperative act, leaving the property exactly where it found it. It is impossible that a person can be, at the same time, buyer and seller; and a person who acts as agent in selling can not, upon the known principles of law, become a purchaser at the sale:" See also Ormond v. Faircloth, 1 Murph. 35; S. C., Cam. & N., 550; Smith v. Pope, 5 B. Mon. 337; Mills v. Goodsell, 5 Conn. 475 [13 Am. Dec. 90]; Stapp v. Toler, 3 Bibb, 450; Singletary v. Carter, 1 Bailey L. 467 [21 Am. Dec. 480]. The court below ruled in accordance with our opinion upon this point; but held that the sheriff might act as agent of an absent person, and that a perchase made by him, as such agent, would be valid. To this latter opinion we dissent. If the policy of the law prohibits a sheriff from buying on his own account, I do not see how it is competent for him to purchase as the agent of another. He can do nothing for himself or for another which is incompatible with his duties as sheriff. We have seen what they are. His skill, diligence, and fidelity belong to the defendant in execution. He may not be, in this latter case, subject to the same temptations to do wrong that he is subject to when he buys for himself. This is true; but still the duty which he assumes as agent for the buyer is incompatible with the duty which he has assumed as agent for the seller. If acting under a general and unrestricted power to buy, at auction, he must be understood as charged with the duty of buying as low as possible, whilst, at the same time, it is his duty, as agent for the seller, to make the property bring as much as possible.

Here is a direct antagonism of position and duty, and involves, almost necessarily, infidelity to one or the other of his principals. His first obligation is to the seller, and the law will not permit him to place himself in a position which subjects him to the chances of violating that obligation—its policy will not allow it. "If A.," says Judge Story, "should employ a broker to sell goods for him at the highest price he could get, and his judgment should be confided in, and B. should, at the same time, employ the same broker to purchase the like goods at the lowest price for which they could be obtained, it is plain, that if this mutual agency were conceded, it might operate as a complete surprise on the confidence of both parties, and would