Cavender v. Heirs of Smith

1 Iowa 306 | Iowa | 1855

Weight, C. J.

Several questions are presented for our adjudication. We regard all of them, however, as subordinate to, and dependent upon, a principal one; and without referring in detail to these minor questions, we shall come at once to consider that which must determine finally the title to this property, and settle the rights of the parties thereto.

That question is, did the sheriff have the power to levy upon and sell this land, and did the plaintiff’s grantor acquire any title thereby, under the circumstances disclosed in this record ? The defendant claims that this land was the homestead of Smith, or that upon which his house or home was chiefly situated; that having, at the time of the levy, other real estate and personal property, the sheriff had no power to levy upon and sell this, without directions from Smith, and that the purchaser could acquire no title thereto. To this plaintiff answers, that granting it to have been his homestead, and that he had personal and other real property, and that Smith gave no direction as to the levy, yet the officer had the power to make such sale; and if he failed to do his duty in the premises, the purchaser’s title cannot be thereby affected, but that such questions are, and must be, between the execution defendant and sheriff.

This property was sold under the act of January 25, 1839. So much of said act as relates to this question, is as follows:

“Section 2. That when hereafter any writ of execution may issue against the goods, chattels, lands, tenements, and hereditaments, of any defendant or defendants, it shall be the duty of the sheriff, or other officer, to levy such execution upon such part of the estate of such defendant or defendants, as he, she, or they may direct; but if no such direction shall be given, the messuage, lands, or tenements on which such defendants may be chiefly situated, shall not be levied upon, unless a sufficiency of other property, to satisfy the execution, or executions, in the hands of the officer, •cannot be found; and in all cases, the real estate of execution defendants shall be exempt from levy and sale, until •the personal estate of such defendants shall be first levied upon and sold, unless such defendants shall voluntarily authorize the sale upon execution of their real estate'; Provided, that nothing herein enacted shall be so construed as to make it the duty of any sheriff, or other officer, to levy upon and sell on execution, property selected for that purpose by any’ defendant or defendants, if there exists any reasonable doubt whether such defendant or defendants is, ■or are, the bona fide owners of such property so selected.”

By the act of January 21, 1839, providing for the appointment, and defining -the duties of sheriffs, he is made ■liable on his official bond for any willful neglect of duty. Arid, by another act, passed at the same session, judgments in the District Court were made liens, from the time of their rendition, upon the lands, tenements, and hereditaments of judgment defendants.

We find no case, in the former adjudications of this court, that can afford much assistance in determining this. In Humphrey v. Beeson, 1 G. Greene, 199, it was unnecessary, and the court seems to have so regarded, to examine the effect of irregularities and errors on the part of sheriffs, in relation to such sales. It is there held, however, that a sheriff’s deed is admissible in evidence, although it contains a variance or a mistake in reciting the execution, and in referring to the decree upon which the land was sold; and that under the statute of 1843, which provided that the sheriff, having an execution, should notify the execution defendant of the time and place of sale, if the sheriff omitted the same, -it was not such an irregularity as would justify1 tbe setting aside tbe sale. In Hopping v. Burnham, 2 G. Greene, 39, it was decided, tbat a mere omission or irregularity in a sheriff’s return, cannot vitiate a sale made under execution, so as to invalidate tbe right of a bona fide purchaser ; and tbat an imperfect return, or tbe failure to mate any return, cannot prejudice tbe title of such purchaser. In Corriell v. Doolittle, 2 Ib. 385,. tbe plaintiff claimed title under a sheriff’s deed. Tbe sheriff’s return on tbe execution, failed to show tbat tbe execution defendant bad been notified of tbe time and place of tbe sale, under tbe statute of 1843, referred to in Humphrey v. Beeson. In reference to tbat objection, tbe court says, “ tbat without such notice,, tbe sale of property belonging to an execution defendant, residing within this state, would be considered at least irregular, and as between original parties to tbe judgment, would doubtless be deemed sufficient to invalidate tbe sale. Where, however, tbe return was merely silent as to tbe fact of notice, as in tbat case, it was held, tbat such silence did not create a legal presumption against any party, tbat it was not regularly given. And, again, tbat “ tbe principle asserted in tbe books, tbat the validity of a judgment sale, does not depend upon tbe regularity of tbe sheriff’s return, is fully adopted.” In tbe conclusion of tbe case, tbe following dictum is announced: “When tbe party for whose benefit tbe execution was issued, becomes tbe purchaser, be should be held accountable for irregularities which would not afiect a bona fide sale to a third party.

These are all tbe published cases bearing on tbe case at bar. Others may have been made, but our attention has not been directed to them, and we are not aware of any. None of them are strictly analogous; for here- it is conceded tbat tbe judgment and execution were regular, and tbe return of tbe sheriff, and bis deed, are in due form; but it is claimed tbat tbe defendants have a right to go back of tbe levy, sale, return, and deed, and show tbat tbe sheriff bad no power to sell tbe land, under tbe circumstances disclosed. It is true, tbat part of tbe reasoning in tbe case of Corriell v. Doolittle, would go to tbe extent of bolding tbe sale invalid, if it appeared, aliunde, tbat such, notice had not been given to the defendant. But such conclusion is not fairly warranted by the whole tenor of the case, and certainly not by the other cases above quoted, and the authorities therein cited. We find nothing in the decisions of this court, then, to conclude the question. We will then refer to the decisions of other tribunals, to see how far we are assisted in giving construction to this statute.

In New York, it has been held, that a sale under execution to a bona fide purchaser, cannot be defeated for error or irregularity in the judgment or execution, or on the ground that no levy was made until after the return day. Jackson v. Roosevelt, 13 Johns. 97. And to sustain this doctrine, Ave are referred to Manning's Case, 8 Coke, 91, as the leading ease. This we have not been able to obtain, and cannot, therefore, speak of it in detail. In Jackson v. Delancy and another, 13 Johns. 537, it was held, that a scire facias to revive a judgment irregularly issued, or an execution issued after a year and a day, without a scire facias, is voidable only, and cannot be called in question in a collateral action, so as to defeat the title of a purchaser under the execution. Without citing more in detail from the decisions in New York, it is sufficient to say, that these eases contain the general doctrine on this subject as recognized in that state, as is shewn by the following cases: Woodcock v. Bennet, 1 Cowen, 711; Ontario Bank v. Hallett, 8 Cow. 192; Jackson v. Bartlett, 8 Johns. 361; Jackson v. Hasbrouck, 12 Johns. 213; Bowen v. Bell, 20 Johns. 338; 3 Caines, 270; Jackson v. Cadwell, 1 Cow. 623; Jackson v. Sternbergh, 1 Johns. Cases, 153. In 8 Johns. 361, above cited, it was held that in an aetion of ejectment against a purchaser of land at a sheriff’s sale, the regularity of the execution cannot be questioned. Some of these cases also make a distinction, between those cases where the land was purchased by the plaintiff in the execution, and those in which a third person became the purchaser. But aside from this distinction, the general doctrine in New York is as above stated.

In Massachusetts, a som.eAvh.at different doctrine obtains. In tbe case of The Inhabitants of Boston v. Tilestonr 11 Mass.. 468, where tbe property was taken and sold on execution in favor of tbe city of Boston, and tbe appraisers were inhabitants of that city, it was held that such appraisers were not competent,, and tbe party claiming title under'such sale was-defeated. In Eastabrook v. Hapgood, 10 Mass. 818, where-tbe sheriff bad,, under tbe statute, returned,, that be bad caused tbe demandant’s dower to be set off by three disinterested freeholders of tbe county and tbe question arising as to her title thereunder, and it being admitted that one of tbe appraisers was not a freeholder, as required by law, it was held that tbe sheriff’s return was conclusive, and that if be made a false return, be was liable to tbe party injured.. In Williams v. Amory, 14 Mass., tbe extent was kolden void, and tbe title of tbe purchaser defeated, because tbe return of' tbe officer on tbe execution failed to show, that tbe appraisers-were discreet and disinterested freeholders.. In Blanchard v. Brooks, 12 Pick. 47, it was held,, that tbe judgment debtor-should be notified to appoint an appraiser, and that unless it substantially appeared that be bad such notice, tbe levy would be void. See, also, on this subject, Eddy v. Knapp, 2 Mass.. 154; Whitman v. Tylor, 8 Mass. 284; Litchfield v. Cudworth 15 Pick. 23; Chamberlain v. Doty, 18 Pick. 495; Allen v., Thayer, 17 Mass. 299; Lawrence v. Pond, Ib.,432; Leonard v. Bryant, 2 Cushing, 82; Bradly v Bonet, Ib. 417.

In Means et al. v. Osgood, 7 Maine, 835, it was held to be-essential to tbe validity of tbe return of an extent, that it should show that tbe debtor was duly notified to choose an appraiser. See, also, Buck v. Hardy,. 6 Maine, 163, and-notes to both of these cases.

In South Carolina, it has been decided that tbe sale of' lands under execution, would be valid, though no return should be made of tbe execution, and that tbe purchaser’s title need not be evidenced by a return. Farne v. Hamilton, 1 Bay, 10; Evans v. Rogers, 2 Nott. & McCord, 563.

In North Carolina, in tbe case of McEntire v. Durham, 7 Iredell, 157, tbe judgment, execution, and deed from, tbe sheriff, were held sufficient, to support tbe purchaser’s title, without proof of the levy.

In Ohio, it was at one time held, that lands sold upon execution, under a statute requiring an appraisement, piust be valued and the appraisers sworn, or the sale was void. Patrick v. Oosterout, 1 Ohio, 27. This case was, however, afterwards overruled in the case of Allen v. Parrish, 3 Ohio, 188; and it was there ruled, that if the sale was made to a stranger, the title would not be vitiated, though the land was not valued. In Statt v. McAllister, 9 Ohio, 19, the doctrine in Allen v. Parrish, is recognized and sustained, and also in Ludlow v. Johnson, 3 Ohio, 553.

In Illinois, the same doctrine is recognized. In Swiggart v. Harber, 4 Scam. 364, it was decided, that irregularities in the sales of lands on execution, can only be corrected by the court from which the process issues; and where such court is not called upon by the defendant in the execution to set aside such proceedings, they cannot be disturbed by any one else in a collateral proceeding; and that while the judgment might have been erroneous, and an execution issued thereon so irregular, that it would have been quashed on motion, yet neither of them can be collaterally inquired into, and declared invalid, at the instance- of a stranger, unless they are not only voidable, bnt void. See, also, Buckmaster v. Carlin, 3 Scam. 107; Bybee v. Ashby, 2 Gilman, 151. In this latter case, the distinction is recognized between those cases in which a third person, and those-in which the execution plaintiff, becomes the purchaser, which we shall hereafter notice.

These questions have been frequently before the courts of Indiana, and numerous cases will be found discussing the duties and powers of sheriffs in such sales, and the rights of purchasers thereunder. W e will refer to some of the more important. At one time, in that state, the statute only authorized the sale of real property on a venditioni exponas. Under this statute, a sale was made under a writ of fieri facias. Held, in an action of ejectment, that the purchaser took no title. The court says, in substance, that the purchaser, in order to support bis title, must show that the sale was authorized by the judgment of a court of competent jurisdiction, and by the kind of an execution which the statute prescribes; and that such a title of a bona fide purchaser cannot be impeached for any error in the judgment, nor on account of the execution’s issuing out of season; nor for any fault of the sheriff in not pursuing the directions of the statute, as respects the inquest, advertisement of sale, &c. Armstrong v. Jackson, 1 Blackf. 210.

In Harrison and others v. Rapp, 2 Blackf. 1, the plaintiff claimed title under a sheriff’s sale. The statute provided, that no real property should be sold under execution for less than one-half its real value, to be ascertained by appraisement. The property in controversy was appraised at $4,640; the execution plaintiff, and the plaintiff in the action of ejectment, became the purchaser for $565 : held, that the sheriff’s sale was void, and his deed conveyed no title to the purchaser. Also, that if the purchaser of real estate at a sheriff’s sale be the execution plaintiff, he is considered a purchaser with full notice, and accountable for all irregularities. In another case, the sheriff had offered the land for sale on the day specified in his notices, and the bidder failed to pay the purchase money. He subsequently re-exposed the property for sale, and the plaintiff in the execution became the purchaser. There was no adjournment from the first to the second sale, nor was there any public notice given of the last sale. It also appeared, that the purchaser at the second sale was fully informed of all the facts, and that the sale was made in pursuance of an understanding between such purchaser and the sheriff: held, that the sale was not in accordance with the statute,- that the iDlaintiff was not an innocent bona fide purchaser; and that sufficient ingredients of fraud existed, to vitiate the sale. As to the general doctrine, the court uses this language: “ It is in general true, that a bona fide purchaser of property at sheriff’s sale, is not affected by any error or irregularity in the judgment or execution, nor by any irregularity or omission of the sheriff, in advertising and conducting the sale. He is protected by tbe presumption, tbat tbe judgment of a competent court of record bas been correctly rendered, and tbat tbe execution in tbe bands of tbe officer bas been regularly issued. He may also fairly presume, tbat tbe sheriff, in tbe discharge of bis duty, bas acted according to law. But if be, by colluding with tbe officer, encourage a departure from duty, to aggrandize himself, be ceases to be innocent. He becomes particeps criminis with tbe officer,'» and tbe law affords him no protection.” Givan v. Crawford and others, 5 Blackf. 260. Tbe cases of Carpenter v. Schoffner, 2 Carter, 465, and Vail v. Craft, Ib. 359, also sustain tbe same position.

Tbe doctrine in Wolf and others v. Heath and another, 7 Blackf. 154, where it was held tbat a purchaser at sheriff’s sale, who pays bis money and receives a deed from tbe sheriff for tbe land, cannot be prejudiced, if tbe sheriff made an imperfect return, or if be make no return at all, is fully recognized in tbe case of Humphrey v. Beeson, in our own court. In Morss v. O'Neal, 2 Carter, 65, where tbe statute required an appraisement of tbe property, it was held, in tbe absence of such appraisement, tbat tbe sale was void, and tbe purchaser acquired no title. To 'the same effect, is tbe case of Holman v. Collins, 1 Carter, 24, and in tbat case this reasoning is adopted. “ There is no more hardship in requiring a purchaser to inform himself of tbe appraised value of tbe property, than there is in requiring him to know of tbe judgment and execution. Tbe appraisement must be in writing, must be taken by and lodged with tbe sheriff before tbe sale, and must be returned with tbe execution. "We do not see why it is not as easy of access as tbe execution itself, to one desiring to become a purchaser.”

In Law and others v. Smith and others, 4 Ind. 56, it not appearing from tbe officer’s return on tbe execution under which tbe plaintiff claimed, tbat tbe rents and profits were not offered before tbe sale of tbe fee simple, it was held tbat it would be presumed tbat they were so offered. The case of Tillotson v. Gregory and another, 5 Blackf. 590, perhaps more nearty resembles tbe case now before us, than any other •decided by that court. The second section of our statute of 1839, is an exact copy of the statute of Indiana of 1838, 277. Under that statute, a judgment was obtained against Tillotson, in favor of one Cronkhite. On this judgment, and under the same law, an execution was issued, on which the land in controversy was sold to Gregory and another. The return on the execution, showed that Tillotson directed the sheriff to levy on another tract of land than the one in controversy, which he did; that Tillotson, refusing to give any other property in execution, the sheriff levied upon and sold the tract in dispute, but did not sell the tract turned out •by Tillotson. In ejectment, it was objected to the title of Gregory and his co-plaintiff, that it was defective, and did not sustain their right thereto, because the tract of land given in execution by Tillotson, was not first sold. It was held, that the statute of 1838 was directory to the sheriff; and that the purchaser’s title was not affected by the failure of the sheriff to sell the land surrendered in execution, any more than if he had sold without giving notice.

In Kentucky the highest sanction is given to judicial sales. See Bank U. S. v. Carrol, 4 B. Mon. 49, where it is held, that where the authority of the officer is exceeded, the sale is void; but not where he fails to strictly follow the authority, or only commits irregularities. Pepper v. Commonwealth, 5 Monroe, 33; Patterson v. Carneal, 3 Man. 619; 3 Dana, 621; Daness v. Warnack, 8 B. Mon. 385; Read v. Easley, 9 Dana, 324.

In the federal courts, numerous decisions will also be found bearing upon this question. In Cooper v. Galbraith, 3 Wash. C. C. 546, where an action of ejectment was brought by the purchaser at a sheriff's sale, against the defendant in execution, or those claiming under him, it was ruled', that the plaintiff need not show any other title than the judgment, execution, and sheriff’s deed, and that the defendant could not controvert such title. In Thompson v. Phillips, Bald. C. C. 266, it is held, that if the court has jurisdiction of the cause, the parties, and the power to order the sale by a ven-ditioni exponas, a sale so made, and a deed acknowledged in accordance therewith.,, cannot be set aside in a collateral action. In the case of the United States v. Slade, 2 Mason’s C. C. 71, however, it was held, under the statute of Massachusetts of 1784, that an extent upon real estate was not good, unless it appear by the return of the officer, that all of the appraisers were sworn, nor unless all the appraisers concur in the appraisement. The case of Wheaton v. Sexton, 4 Wheat. 503, is familiar as a leading ease, and with reference to it, this court, in the case of Hopping v. Burnham, uses this strong language: “-No court has presumed to question the correctness of this decision. The highest tribunals have been guided by it, in acting upon all sales made by judicial process.” The language so expressly approved, is this: “The purchaser depends on the judgment, the levy, and the deed. All other questions are between the parties to the judgment and the marshal. Whether the marshal sells before or after the return; whether he makes a correct return, or any return all, to the writ, is immaterial to the purchaser.” In 1 Yesey, 195, Lord Hardwick decided, that where a defendant -was in custody under a ca. sa.y and a ft. fa. was afterwards taken out on the same judgment, and a farm levied on and sold, the purchaser, being a stranger;, should hold it, as the fi.fa., though irregular and erroneous; was not void. And in the case of Taylor v. Thompson, 5 Peters, 369, it is stated, that the authority of this decision,' has never been questioned.

In the case of the United States v. Arredondo, 6 Peters, 729, the following general principles are stated as well settled and of universal application: “Where power or jurisdiction is delegated to any public office or tribunal over a subject matter, and its exercise is confided to, his or their discretion, the acts so done are binding and valid as to the subject matter; and individual rights will not be disturbed collaterally for anything done in the exercise of that discretion, within the power and authority conferred. The only questions that can arise, between an individual claiming a right under the acts done, and the public, or any person denying its validity, are power in the officer, and fraud in the party. All other. ques.~ tions, are settled by tbe decision made, or tbe act done by tbe tribunal or officer; whether executive, legislative, judicial or special, unless an appeal is provided for, or other review, by some appellate or superior tribunal, is provided by law.” This doctrine is fully recognized in tbe well considered case of Vorhees v. The Bank of the United States, 10 Pet. 449, as tbe rule governing judicial sales, as-far as that learned and high tribunal could do it. This case is familiar to tbe profession, and we need do nothing more than refer to it, as fully sustaining tbe position, that tbe highest sanctity should be given to judicial sales, and protection afforded to those who purchase thereat, so that sueh property “may become transmissible with security to tbe possessors.” See, also, Folmie v. Thompson, 2 Pet. 157; Blaine v. The Charles Carter, 4 Cranch, 328.

We have thus somewhat fully referred to the adjudications of other tribunals. We have felt tbe more justified in so doing, from tbe consideration that this question is now, for the first time, presented to us for determination, and tbe evident importance of the cause, as shown by the record, and tbe full and able arguments made by counsel representing these parties. Some of tbe authorities bear perhaps but remotely upon tbe questions involved — others are more or less analogous, dependent upon the different statutes under which they were made. To have referred to these different statutes, and shown how each case arose, while it would have been satisfactory, would at tbe same time have unreasonably extended this opinion. The decisions in Massachusetts, however, it is proper to state, were made under a statute different from that of most of the states. There, they follow to some extent, the principles of the.common law, which apply to tbe extent of an elegit, or a moiety of tbe debtor’s lands. Tbe creditor, after appraisement by appraisers, becomes tbe purchaser of tbe estate for its value, according to such ap-praisement, or so much thereof, as will equal in value tbe execution and charges, which is set off and described by metes and bounds. He has something to do in selecting an appraiser, showing the lands, and directing tbe levy. Under such a statute, it is scarcely necessary to say, that a different rule should obtain, than in those cases where no such duties are prescribed, and where all persons can become bidders.

It is also somewhat remarkable, that, upon a question so frequently and in various forms presented for adjudication, so much apparent conflict should be found in the authorities. To attempt to deduce from them, any rule that would be sustained by all of them, as applicable to the ca.se at bar, is perhaps impossible. We must, therefore, without the aid of any direct authority, apply such general rules, in the construction, as in our opinion, are most just and equitable, most fully sustained by reason and authority, and such as will be most likely to protect the rights of all parties in such controversies.

Such was the policy of the common law, that the freehold could not be sold for debt by any kind of an execution. The authority in this country, to.sell the land, is given by statute. In making such sales, and thus effecting these involuntary transfers, policy and reason require that legal forms should be observed, and the essential provisions of the statute followed, that the rights of parties may be protected, and their property held inviolate from illegal seizure and disposition. On the other hand, however, where the power is given, and there is a failure on the part of the officer to comply with a statute directory in its character, authority, as well as policy ' and reason, must sustain such titles, in the absence of fraud. Eor any injury resulting to the defendant, the sheriff is liable on his official bond. So, also, the defendant has his remedy by direct application to set aside the sale. And, again, these sales seldom take place, but that the defendant has full opportunity to protect himself from the consequences of his property falling into the hands of purchasers without notice, by attending the sale and declaring his rights. And, indeed, in so many ways may he protect himself, that though we sustain such sales, it by no means follows, that the defendant is left remediless. We are, also, inclined to give much weight to the suggestion, that there should be some repose and quiet to these titles, as well for the. interest •of defendants, as those who purchase. If, by statute, lands may be sold, then encouragement should be given to purchasers to give the full value of what they purchase. To .give this encouragement, nothing would have a greater tendency, than to hold such sales valid, notwithstanding trifling irregularities. “ In this country, particularly, where property, which within a few years was of but little value, in a wilderness, is now the site of large and flourishing cities, its enjoyment should be at least as secure, as in that country where its value is less progressive.”

The statute under which this land was sold, we think, was directory, and not inhibitory, upon the officer. As already shown, this has been expressly so held, with reference to a statute of which ours is a literal copy, by a court of deservedly high authority. Tillotson v. Gregory and another, 5 Blackf. 590. It appears to us to be as much so, so far as the purchaser’s rights are concerned, as those provisions which provide for notice to the defendant, for the advertisement and notice of sale, or the return of the writ; and we -do not think, on authority, that the failure of the officer in any of these particulars, in the absence of fraud, would vitiate the sale, And the fact, that the law making power has not declared that the title shall be vitiated, by reason of the failure of the officer to comply with the directions and provisions of the statute, is entitled to much consideration. This, it would be competent for the legislature to do, and the failure to so provide, is a circumstance entitled to much weight in construing the statute. 10 Peters, 449.

Whether the execution defendant had other real estate; whether he had, or had not, personal property; whether he gave any, and, if so, what directions to the officer, are made no part of the duty of the officer to return. These things all exist in pais. It would be next to impossible, that any purchaser could ever protect himself beyond a contingency, if he shall be affected in his title, after a lapse of years, by showing that the officer failed to do his duty.' - 'Suppose the officer should falsely say to the purchaser, that the defendant directed the sale of the land offered, would there be either reason or law in saying, that Ms title should, be defeated, by showing that such direction was not given, but that the defendant did, in fact, forbid the levy on the particular tract ? We think not. The officer might be liable,, and on proper showing, on a direct application, the court from which the execution issued, might set aside the return j but all the authorities recognize different rules, and give more effect to irregularities in such proceedings, than where the question arises, as in this case, in a collateral action.

In the cases in Blackford, and other kindred authorities, it will be found that the sales were held void, because the officer had failed to do some act that was evidenced by writing, or was public, ox because of a vital defect in the judgment or writ wMch conferred the authority. Where the property is to be appraised, as was the case in many of the authorities cited, such appraisement was a matter easily ascertained; and it was upon this idea, it will be recollected, that the case in 1 Carter, 24, was placed, when it is said that there is no more hardship in requiring the purchaser to take notice of the appraisement, than to require him to know of the judgment and execution. And without indorsing the doctrine, that a failure to appraise the property, under a law requiring an appraisement, would defeat the title, yet, to our minds, there is a palpable distinction between such cases and the one at the bar. No purchaser, be he the plaintiff in the execution, his attorney, or a stranger, could have goné to the execution, under the law of 1889, and ascertained the condition of the defendant’s property, or what directions he had given with regard to the sale. These things were not as easy of access and ascertainment, as the execution itself, and yet the appraisement was, as stated in the case ini Carter, 24. And in-like manner, do we think, there isa clear distinction between the facts of this case and that of Gantly's Lessee v. Ewing, 3 Howard, 707, so strongly relied upon by the defendants. We direct attention to the following language in that case: “ The statute contemplates a sale* of the term; or an offer to sell it, and a failure; and this at public outcry, at the same time and place, and immediately preceding the sale of the fee. He who goes to purchase, and is present at the sale, and does parchase, rarely if ever, can want actual knowledge, as the open outcry and public auction of the term, .is to be as notorious, as that by which the fee is sold; and even should the purchaser of the latter, not be present at the opening of the vendue, the slightest diligence would command information, whether the requisite previous step had been taken. To treat a bidder at the sale, in any of its stages, as an innocent purchaser, we think would be dealing with him in a manner too indulgent; as it is quite certain, in no other instance, could the doctrine of innocent purchasers be applied to one having equal opportunities of knowledge, aside from any duty imposed on him to, acquire it. Furthermore, this would in almost every case of the kind, narrow down the issue to a single point, whether the purchaser had or hdd not notice; leaving the jury to determine on the validity of the title by the exercise of an undefined discretion; its verdict being founded on an exception, in .pais, and on one the legislature did not see proper to make.

Now, is it not true, that under the rule laid down in this case, by the court below, the jury were left to determine the validity of the plaintiff’s title by the exercise of an undefined discretion ? that the exception to the sale exists altogether in pais ? and that upon such an exception, must the verdict have been founded ? If so, and we think it is clear, then, according to this authority in 8 Howard, it was the recognition of an exception that the legislature did not see proper to make. And, again, in that case it is held, that “ if the words of a law are doubtful, the sale should be supported, and the benefit of an obscurity in the statute, be given to the purchaser, lest he should be misled in cases where a general power is given to the sheriff to seU, and this is limited by indefinite restrictions; and that the safer rule is, to hold 'such restrictions to be directory.” Under the law of 1889, a general power is given to the officer to sell. Whether he sells personal property, the homestead or messuage on which the defendant is “ chiefly situated,” or •other real estate, Ms power is the same. He derives it from the same character of judgment, and by the same character ■of writ; and in finding personal property, or other real estate, obeying the directions of the defendant as to his levy, and ascertaining and determining upon the title of the property which may be turned out, Ms diligence and discretion are not regulated by any rule, nor by any definite restrictions. There is no way in which, under the statute, you can measure Ms diligence, or say when he has sufficiently searched . for other property, or what shall be the evidence of doubt as to the ownership of that turned out by the defendant; and in such cases, “ the benefit of the obscurity should be given to the purchaser,” and such restrictions held to be directory.

In the case of the sale of rents and profits, however, there is in the performance of the act, nothing left to discretion. There is one definite, tangible, and easily ascertained act to be done. It is public and notorious, and the mind of the purchaser could not well be left in doubt or without positive knowledge, as to whether it was, 'or was not, done.

But, again, we think it easy of demonstration, that under the principles laid down'by Justice Catron in this very case, tMs sale would be held good by the Supreme Court of the United States. He expressly recognizes the general rule, that if the statute of Indiana, under which that sale was made, was merely directory to the officer, then the sheriff’s deed could not be assailed. He also refers to, and recognizes, another rule, that it is their duty to follow the construction given by the Supreme Courts of that 'and other states to their respective statutes. Now, the Supreme Gourt of Indiana, as we have seen, did in the case in 5 Blackf. 590, expressly hold that the section in their statute of 1838 (and of which ours is a literal and exact copy), was directory to the officer. And therefore, on the authority of this case in 3 Howard, we think the conclusion is. inevitable, that that tribunal would hold that this deed could not be assailed, for any failure of the officer" to follow the statute. We are also referred by defendants to the case of Woodward v. Murray, 18 Johns. 400. We think the questions there raised and decided, entirely different from those in this case. There an execution issued against Murray, at the suit of Woodward. Murray was in Ohio, and his family being about to remove to his wife’s father, the constable, by virtue of the execution, levied upon a cow, as also some other property. It was rumored that Murray had absconded to avoid his creditors. This cow the constable drove off and -sold. Woodward was present, when the -execution was levied, and afterwards purchased the cow. It was proved that, when the execution was levied, Murray’s wife consented to give up the cow, if the constable would release the other property, which was accordingly done. For the cow so sold, this action was brought by Murray. The court held that the law of New York exempting a cow from execution owned by a “householder,” was intended for the benefit of poor families, and that though the husband may have left the state, yet if his wife and children were living together, he would still be a householder, the and cow be exempt ; and that the wife’s consent that the cow might be sold, was not binding, without special authority from the husband. And the court, also, say, “that the evidence rather shows that the consent of the wife, was extorted by the officer.” This brief statement of the case, we think? sufficiently shows it to have been decided on a state of facts entirely different from those in the case before us. ¥e are also referred to Boal et al. v. King et al., 6 Ohio, 11; Jackson v. Morse, 18 Johns. 440; Stead’s Executors v. Nourse, 4 Cranch, 403; which were cases involving the validity of sales for taxes, and titles derived thereunder. With regard to all these cases, we think it sufficient to say, that the conditions precedent to be performed by the officers who have anything to do with the testing and valuation of the land, the levying and collection of the taxes, the advertisement and sale of the property, the return, filing or record of the proceedings, are so essentially different, that we cannot recognize them as applicable to this case. Blackwell on Tax Titles, 46, 252 and 253.

It is also claimed, that the amount bid for the land was ■so greatly inadequate, that the plaintiff’s .title must be defeated. The authorities are not entirely uniform upon this subject. Without referring to them in detail, we need only say, that under none of the cases, do we regard the price paid in this case so grossly inadequate, unaccompanied by 'circumstances of fraud, as to invalidate the title, however the rule might be, if the objection was made on a direct application to set aside the sale. The land was sold for $250. Witnesses value it at from $800 to $1,200. In some •of the eases to which we have directed our attention, the land was worth $1,800, and sold for $400; in another, worth $800, and sold for $80; in another, worth $500 or -$600, and sold for $25; and in still another, worth $1,200 or $1,500, and sold for $111; and yet the. sales were sustained. Without pronouncing positively, we incline to the rule, that gross inadequacy of price is not, of itself, sufficient to set aside a judicial sale, but that this may become an element quite controlling, in connection with other circumstances. 2 Ind. 99 and 442 ; White v. Damon, 7 Vesey, jr. 34; Stockton v. Owings, Litt, S. Cases, 256; Hart v. Bleight, 3 Monroe, 273; Gist v. Frazier, 2 Litt. 118. In most of the cases where sales have been held invalid for this reason, •even on a direct application, they will be found to have the further element, that the officer sold a large tract, or tracts, without division, when, if he had sold one parcel, or division, or a smaller portion of the tract, his writ might -have been satisfied, without sacrificing the entire estate of the debtor. See Reed v. Carter, 1 Blackf. 410; Tierman v. Wilson, 6 Johns. C. 411; Sherry v. Nick of the Woods, 1 Ind. 575.

It is again claimed, that the purchaser acquired no title, because the judgment, under which the land was sold, was paid and satisfied at the time of the sale; or, if not finally paid before, that the land was redeemed before, the deed was made by the sheriff. How far the plaintiff’s title might be affected, if the judgment was satisfied at the time of the ¡sale, or whether the land was redeemed, it becomes, unnecessary to examine, however; for we think it conclusively appears, by the record, that these questions had been settled adverse to the defendants, in a direct adjudication between the parties. Such adjudication must be final; both parties must be bound by it.

The fact that the attorney of the execution plaintiff was the purchaser, has not been pressed in the argument. We have, however, given it consideration. It is clear that he, or the execution plaintiff, from their relation to the judgment and execution, should be held, in many cases, to greater strictness, and affected by slighter irregularities, than strangers. In this case, however, we think that the only questions are: power in the officer, and fraud in the party. In most of those cases, where the attorney or plaintiff has been held to a more strict rule, it will be found, that the omission or irregularity of the officer was evident, palpable, and shown by the writ. Here, however, the action of the officer, in levying on the land, was out of the record, and, as already stated, existed only in pais. We have shown that the sheriff had the power, and no fraud is manifest. Under such a case, we see no reason to apply a different rule, than if a third person had purchased.

Rehearing granted, judgment reversed, and cause remanded.