¶1The opinion of the court was delivered by
¶2We are all agreed, in this case, that the proceedings in the county court were erroneous in one particular, and that their judgment must be reversed. It would be well if we could decide all the questions which have been argued, but, as the views of the members of the court who are now present are not all alike, we are under the necessity of leaving them undecided, and if it should be found necessary hereafter to present all or any of the questions which have been argued, it can be better done under an amended declaration, and possibly some of them may be obviated by the introduction of further testimony.
¶3Admitting, therefore, that, in a sheriff’s sale, there is a warranty of the title of the property sold, the officer who sells must be liable on such warranty, and if he can be considered, under the peculiar circumstances of this case, as an agent for Silver, the creditor, so that the latter is bound by his acts, we think the officer was not the proper person by whom to prove the agency, and other circumstances, to charge the defendant. His interest to fasten a recovery on the latter is obvious, as he thereby would discharge himself, especially if a satisfaction were obtained of Silver. It is not like the case of a joint tort-feasor, who has been considered as an admissible witness for a plaintiff. A judgment in this case would be evidence against the defendent that Underwood acted under his directions. We are, therefore, all agreed that, for this reason, the judgment of the county court should be reversed.