Burke County NcArchives Court.....John M. Greenlee, William Ainsworth V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 3, 2009, 8:14 am

Source: Nc Reports
Written: 1819

William Ainsworth v. John M. Greenlee

From Burke

November 1819

A constable offered for sale, under an execution, divers goods locked up in a 
room, Without shewing them to the bidders. The sale is void.

The law requires the sale to be conducted in such a way as is most likely to 
make the property bring the highest price. The bidders ought to have an 
opportunity of inspecting the goods and forming an estimate of their value. 
The goods ought also to be present, that the officer may deliver them 
forthwith to the purchasers.

The Defendant owned a house in the county of Burke, having sundry apartments, 
one of which he had leased to James W. Edwards. Sundry persons having obtained 
judgments against Edwards, executions were sued out, and on the day on which 
his property was advertised for sale, the Plaintiff, William Ainsworth, 
settled one of the executions, amounting to $120 or thereabouts, in some way 
satisfactory to the Plaintiff in that execution; and all the other executions, 
except one for $19, in favor of Hopper, were compromised between Edwards and 
the Plaintiffs in said executions. The constable set up a mare for sale to 
satisfy the execution of Hopper, and a bid of five dollars was made. The sale 
of the mare was cried for some time, when the constable said, he also set up 
with the mare a quantity of goods which were locked up, upstairs of the 
apartment leased to Edwards, the sale being made before the door of the house. 
The goods were not shewn, nor were they examined nor particularly described. 
Ainsworth, the Plaintiff, bid $20. The sale was immediately closed, and he was 
declared by the constable to be the purchaser. The goods were of the value of 
$150, and the mare of $40. Edwards was insolvent, and indebted to other 
persons besides those who had executions against him. 

After the sale, the constable went up stairs, unlocked the room, and, taking 
the goods piece by piece, delivered them to Ainsworth. They were left in the 
room; and some days thereafter, Ainsworth applied for the goods, when Greenlee 
refused to let him have them. Ainsworth demanded the goods, and, upon 
Greenlees' refusing to deliver them, (he admitting that they were in his 
custody), Ainsworth brought this action of trover to recover their value.

The Court charged the Jury that the sale under which Ainsworth claimed the 
goods was void; because the goods were not shewn at the time of the sale, nor 
before the sale, to the persons attending. There was a verdict for the 
Defendant; and a rule was obtained for a new trial upon two grounds: 1st. Of 
misdirection by the Court; 2d. That if the sale were void, yet that Ainsworth 
was entitled to recover upon the delivery made to him of the goods by the 
constable. The rule was discharged, and the Plaintiff appealed.

Taylor, Chief-Justice: The constable's authority to sell these goods was 
derived under a fieri facias: the execution of which the law requires to be 
done in such a manner, as that by the sale, the property is most likely to 
command the highest price in ready money. It is evident, that for this 
purpose, the bidders ought to have an opportunity of inspecting the goods, and 
forming an estimate of their value: without which it is not to be expected 
that a fair equivalent will be bid. The presence of the goods too, in the 
possession of the officer, to which possession the levy gives him a right, 
assures the bidders that a delivery will he made, to the highest forthwith: 
and that so far the object of the purchase will be attained without 
litigation. Here, however, the goods were sold without being exhibited to the 
bidders, and while they were actually locked up in an apartment of the house. 
This was such an abuse of authority in the constable as was calculated either 
to sacrifice, at under value, the property of an honest Defendant, or to 
subserve some purpose of collusion between a knavish one and the purchaser. 
One of these ends must have been effected in this case, where property has 
been sold for one tenth of its value. There is much justice and security in 
the rule established by the decisions heretofore made, requiring the presence 
of chattels when they are sold by the sheriff or constable; and those cases 
ought to bo followed. 

The rule for a new trial must be discharged.


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