3 Ohio 187 | Ohio | 1827
Lead Opinion
Opinion of the court, by
This case depends upon the title of the defendants to the premises in controversy, and that title upon the sufficiency of certain proceedings had upon a mortgage from G-. W. Allen, the ancestor of the lessor of the plaintiff, and from whom both parties derive title, to J. Langdon, dated September 18, 1805. At the February term, 1809, of the courtof common pleas for the county of Franklin, a judgment was obtained upon sci. fa. upon this mortgage, and execution sued out againát the mortgaged premises, a sale made thereof by the sheriff, who conveyed to the purchaser, L. Starling, by deed, dated July 11, 1809. There was no appraisement of the value of the mortgaged premises recited in the sheriff’s deed, or produced
The act for the recovery of money, secured by mortgage, of February 12, 1805, which was in force at the time the mortgage from G. W. Allen to Langdon was executed, and at the time al>. the proceedings thereon were had, provided, that upon final judgment being entered upon the mortgage, “ a writ of levari facias might issue, by virtue of which the mortgaged premises should be taken in execution, and disposed of in the same manner and under the same regulations, that lands or tenements are, or may be, by law, disposed of *for the satisfaction of judgments.” It is contended that this provision of' the law requires the sale of mortgaged premises to be conducted in the same manner, and under the same regulations prescribed by law, for the sale of lands in satisfaction of judgments in force at the time of executing the mortgage, or suing out the writ of scire facias. But this is a construction which neither the words of the law nor the intent of the legislature will warrant. The expression, “the mortgaged premises shall be disposed of,” as lands “ are or may be by law,” refers to-the time of the disposition by sale of such mortgaged premises. It is the disposition of the mortgaged lands under the writ of levari facias, that the legislature is providing for, and they direct the-manner of that disposition to conform to the laws that may happen to be in force for the sale of lands in satisfaction of judgments, at the time of such disposition.
It has been repeatedly held, that the law in force at the time of a sale of lands upon execution must control the manner of proceeding, by the officer in conducting such sale, and not the law in force at the time of the rendition of the judgment, except those cases specially provided for by statute. It has been the uniform policy of our mortgage laws to require all lands mortgaged since June 1, 1805, to be sold in the manner prescribed by law, for the disposition of real estate by execution, in satisfaction of judgmen s in force at the time of such sale. Mortgages executed prior to June 1,1805, are, by another statutory jwovision, to be proceeded on, and the money secured thereby recovered in the manner directed by th©
The judgment and execution law, in force at the time the sale of these mortgaged premises was made by the sheriff, under the levari facias, required that all real estate levied on by an execution, should be appraised and not sold for less than two-thirds, or one-half of such .appraised value, as it might happen to be improved or unimproved.
The next, and most material question is, whether a sale of lands upon execution, is valid without an appraisement. This is the first time this question has been brought before the whole court for argument and determination, and had it not been for the decision in the ■case of lessee of Patrick v. Ousterout, 1 Ohio 27, I should have felt
The general principle by which the validity of sales upon execution is to be tested, is laid down by the Supreme Court of the United States, in Wheaton v. Sexton, 4 Wheat. 503. It is there said the purchaser depends upon 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 no return at all to the writ, is immaterial to the purchaser provided, the writ was duly issued, and the levy made before the return. Substantially the same doctrine has been recognized in the courts of most of the states, when lands are sold upon execution to satisfy judgments. 2 Bibb, 402; 3 Bibb, 217; 8 Johns. 366; 16 Johns. 357 ; 2 Bin. 40.
It is the well-settled doetrine-of the English courts, that the irregularity of the sheriff’s proceedings, in sales, will not vitiate the right of the purchaser, provided he had an execution authorizing him to, and he did in fact levy and sell. The purchaser must look to see there is a judgment, upon which to found an execution j that an execution has been issued, and a levy made, but is not bound to inquire into the regularity of all the ministerial acts of the sheriff, before or after the sale.
It is certainly true that the legislature might make an appraisement of the land, essential to the validity of the sheriff’s deed, as they can impose any condition or restriction upon those alienations of estates that derive all their efficacy from statutory regulations. But as the legislature, when the}*- subjected real estate to be levied on and sold,in satisfaction of judgments, were acquainted with the principles of the common law, applicable to sales by sheriffs under execution, it must be presumed they intended those principles
*In order to ascertain whether that intent has been manifested by the legislature, the court have not confined their attention to the act regulating-judgments and executions in force at the time this sale took place, but have examined all the subsequent statutes thereon, as they all, much as they differ in other particulars, contain the provision for the appraisement of lands, and direct that no sale thereof shall take place for less than a certain proportion of the appraised value. A clear expression of the intent of the legislature, that such appraisement was essential to the validity of the purchaser’s title, found in any one of the numerous acts made upon the same subject matter, would greatly assist in giving, if not entirely controlling the construction of the same provision in the other acts. This examination has shown, that from 1808 the provisions of the different acts regulating the appraisal, sale, and conveyance of land, by virtue of an execution, have been very uniform, especially considering the great number of acts the legislature have found it expedient to pass on the subject of judgments and executions.
It is admitted that the legislature have not in any of the judgment and execution laws declared, in so many words, a sale of lands by the sheriff under an execution void, if made without appraisement; but it is said, that by force of the proviso in the first section of the act of 1808, and contained in substance in all the subsequent execution acts, such appraisement is made a condition precedent to the sale, and essential to its validity. A majority of the court, however, after the most careful examination of the several statutes, are unable to give this construction to the proviso, as, in their opinion, it would have the effect to render it inconsistent with some, and entirely defeat other material provisions of the same statute. The act of February 22, 1808, amendatory to the act of 1805, regulating judgments and executions, provides “ that if execution be levied on lands, and the officer levying such execution shall call an inquest of five reputable freeholders, and the inquest shall on oath or affirmation return to said officer, under their hands and seals, an estimate of the real value of said estate, upon actual view of the premises,” that the officer shall forthwith deposit a copy of the appraisement with the clerk who issued the execution, and sell the same agreeably to the provis
The construction contended for, by which a sale by the sheriff would be void, without appraisement, can not receive any aid from the circumstance that the clause of the statute relied on is in form of a proviso. A proviso is generally used in a statute to ■qualify, limit, or restrain the operation of general terms contained in a previous part of the section or act, and not to introduce a distinct and independent proposition. The section in which this proviso is found, is in all the statutes directory to the officer levying an execution on land. He shall call an inquest of five freeholders ; he shall return a copy of the appraisement to the clerk’s •office, “ and immediately advertise and sell such real estate;” then follows the proviso, “ that no tract of land shall sell for less ” etc. The natural office of the proviso here would seem to be to limit the general terms used in the direction to sell to cases where such sale could be effected for one-half, or two-thirds the appraised value, as the case might be. Whether this be the proper office of the proviso here or not, it certainly would have been entitled to more weight in the present question, had it been found in those .sections of the statute, declaring the effect of a sale of land, on execution by the sheriff, and the extent of the interest the purchaser acquired *by such sale, in a section, acknowledged to be directory to the sheriff of his duty.
If the appraisement, by five freeholders under oath, was intended by the legislature as essential to the validity of the sheriff’s deed, they would, it is presumed, have provided some mode of preserving the evidence of such appraisements, for the benefit of the purchaser. The only provision of the statute looking to such preservation, is that directing the sheriff, before he proceeds to sell, to return a copy of the appraisement to the office of the clerk of the court issuing the execution. There is no direction in any of our statutes to the clerk to record the copy, or place it on file1 among the papers in the cause, to note it on his execution docket, or make *any other disposition of it, or even to preserve it. It can scarcely be believed that the legislature intended by the-proviso in question, that the purchaser at sheriff’s sale should be bound to show an appraisement under oath, by five freeholders,.
The legislature, in all the general acts regulating judgments and executions, have directed the officer selling land, to make to the purchaser a deed for the lands so sold; and have directed that the sheriff’s deed “ shall recite the writ or writs, and the judgment or judgments, or the substance thereof, by virtue whereof the said lands” were sold. The legislature, by directing this recital, evidenced their knowledge of the necessity of there being a judgment and execution to sustain the sheriff’s deed; and it was apparently their intention, that the deed should contain on its face a reference to those facts, upon which its validity must depend. If they had supposed that by the same act requiring these recitals, they had made the appraisement as essentia] to the purchaser’s title as a judgment, they would, it seems to me, have directed the officer making the deed also to recite such appraisement, especially, as they had not provided for the original being placed on record in any public office, or for the preservation and making evidence of a copy.
The legislature, in each of the several judgment and execution laws, have also declared the effect of a sheriff’s deed, without limiting it to those cases, where all the directions of the statute have been complied with. “ The sheriff, who, by such writ or writs of execution,, shall sell the lands, etc., so levied upon, shall make to the purchaser as good and sufficient a deed of conveyance for the lands, etc., so sold, as the person against whom such writ of execution was ^issued might have made for the same; and such deed shall vest in the purchaser as good and perfect an estate in the premises therein mentioned as was vested in the defendant, at or after the time the lands became liable to the satisfaction of said judgment.” The purchaser is to have as perfect an estate in the lands sold by the sheriff as the defendant had; provided, the sale had been made under an execution levied upon
By section 21 of the judgment and execution law of 1810 (and there are corresponding enactments in all the subsequent execution laws), the sheriff, or other officer having an execution in his hands, “who shall neglect or ^refuse to soil any lands, etc., or shall neglect to call an inquest of five respectable freeholders, etc., shall be amerced in the amount of the debt, damages and costs, with ten per cent, thereon, to, and for the use of the plaintiff or defendant, as the.case may be;” and the same section further provides a summary mode of obtaining said amercement, by either party; and that execution issue, in the name, and for the use of the plaintiff or defendant, as the case may be against the body, goods, lands, etc., of such officer; saving to both parties, the
There is no provision for amercing the sheriff for selling lands without judgment or execution, or levy; nor for conveying to a pretended purchaser, when, in fact, there had been no sale, for then ■would all be inoperative and void, and would, in a legal sense, work injury to no one. But it is for omitting to do, what by law he was bound to do; or by proceeding in a manner different from that prescribed by the statute, and which, nevertheless, would bo operative, as between the parties, that he is to be amerced.
He is to be amerced, “for neglecting to call an inquest,” in the amount of the debt, and ten per cent, upon the motion of the judgment debtor, whose lands have been sold without valuation. The sale is absolutely void, the title still remaining in the judgment debtor, and the purchaser taking nothing by his deed, if the effect contended for by thó plaintiff, is to be given to the proviso ; and yet, for this void act, working no injury to the defendant, but a benefit, so far as the amount paid by the purchaser diminishes his debt', he is to amerce the sheriff in the full amount of that debt, and ten per cent, thereon. It would be doing injustice to the legislature, to suppose that they intended the sale of land upon execution, by a sheriff, without appraisement, to be absolutely void, when, at the Bame time, they subjected him for making such sale to so severe a penalty. If such sale be void, the parties would not be injured thereby. The judgment debtor would lose nothing, the creditor might be subjected to a short delay, but his lien upon the lands would still remain, and yet these parties, or one of them, can subject the sheriff to this penalty, for an act almost harmless as to them, while the purchaser who has paid his money, and acquired *no valid title, and the only one materially injured, is without remedy or redress. Courts of law are not warranted in giving such a construction to the acts of a legislature, as must necessarily work injustice and be fraught with injurious consequences, unless the intent of the legislature that they shall be so understood, is manifest and clear beyond any rational doubt. The legislature probably intended the provision requiring an appraisement of real estate, and that it should not be sold for less than a certain proportion of the appraised value, as a majority of the court understand it, as directory to the officer having the execution, making it his duty to cause such appraisement, and forbidding him under a pen
It is certain that the legislature intended that all lands upon which an execution had been levied, should be fairly appraised at their just value; and they made it the duty of the officer having such execution, to cause such appraisement to be made; and for a neglect of this or any other duty, he was liable to the party injured thereby. They did not expect that lands would be sold upon execution for less than one-half or two-thirds of their appraised value, and they made it the interest of the officer who had a control over the sale, to see that it was in all things conducted according to the direction of the statute. The failure or neglect in advertising, or causing an inquest to be held of the value of the land, subjected him to a penalty to the amount of the judgment, with ten, and at one time twenty-five per cent, addition, to be imposed and collected in a summary manner, as well as his liability to an action, at the suit of the person injured.
The legislature believed that they had insured the faithful discharge of the duties imposed upon sheriffs, as they must be always influenced thereto by the most powerful of motives, that of self interest; and that neither policy nor justice required that'the innocent purchuser should be subjected to loss by the neglect of a public officer, over whose acts he had no control.
*The policy of appraising lands levied on by execution in satisfaction of judgments, and requiring them to sell for a certain proportion of the appraised value, was early adopted, and since constantly adhered to in Ohio. It has been found, as it was expected, beneficial on the whole to both creditor and debtor. To creditor, by preventing the debtor, in the name of a friend, from purchasing a largo estate for a trifle, leaving the debt unsatisfied, and removing many of the inducements the debtor had to cover up his estate, and prevent it from a forced sale for what it would bring ; to debtor, by preventing the sacrifice, in a time of a general scarcity of money, of his real estate, for a sum greatly below its just value. In many instances it has retarded the collection of debts, especially where the sum- was large, and thereby produced inconvenience, and sometimes embarrassment to the creditor; but •its effect has been to eventually secure a more certain, though
But the judgment debtor is not compelled to rely alone upon the liability of the officer for his remedy, ample and expeditious as that is made by statute. If the sheriff should attempt to sell without appraisement or advertisement, a judge’s order might easily be obtained to stay all proceedings on the execution until the sitting of the court, when the sheriff might be punished for attempting to abuse the process of the court, if such should be the fact, and his proceedings set aside for irregularity. And in cases where the sale had taken place, but the money not paid over to the creditor, or a deed delivered to the purchaser, the court might interfere and set aside the proceedings on the execution as irregular, as they could then place the parties in the same situation they were in before the irregularity took place. There are many ways under our law and practice in which, upon proper application, a court could effectually interfere to prevent a sale of lands not appraised from being ^perfected by the execution and delivery of the sheriff’s deed. Protection against wrong from the hands of ministerial officers, as well as redress for injuries sustained, is abundantly furnished by law, and it must be for the neglect of the judgment.debtor, if his lands are ever sold without the requisitions of the law being strictly complied with. But when the judgment debtor, who ought to be vigilant if he will enjoy his privileges and protect his rights, stands by and suffers the sheriff or .other officer to sell his lands after judgment, ex-eeutiqn, and levy, receive the purchase money, and execute and deliver a deed of conveyance to the purchaser, such sale is not vitiated, or the deed void, for want of an appraisement, or on account of a defective appraisement. The judgment debtor’s remedy is against the officer for neglect of duty ; and to him he must look for redress for the injury he has sustained.
If the view, which a majority of the court have taken of the judgment and execution acts, prior to the law of 1824, be incorrect, and the true con&L. action of those acts should require an ap
These provisions of the statute are admirably adapted to protect the rights and interests of the judgment creditor and debtor, as well as the purchaser at sheriff’s sale; and so long as courts ■carefully examine into the regularity of the sheriff’s proceedings upon the levy, appraisement, advertisement, and sale, there is no danger of injury being sustained *by any of the parties interested. It will probably produce, ere long, the desirable effect of making titles, derived under sheriff’s deeds, equal in public estimation to those derived either from individuals or the United ■States.
Dissenting Opinion
Dissenting opinion of
I concur most cheerfully in the decision made by the court in this case, but my conclusion has been derived from different premises.
I am satisfied that the payment of the money by Starling, under whom the defendant holds, and the quitclaim deed from Lang-don, the mortgagee, ought to be treated as a transfer of Langdon’s interest in the mortgage. The day of payment had passed, and the mortgagee had a right to the possession of the mortgaged premises. The defendant may be considered as in possession under the mortgage, and in strictness of law, he has a perfect legal title, which can not be disturbed, but by a bill to redeem, which is a distinct subsequent procedure, in which relief may be granted, or denied, according to the circumstances and equity of the case.
This subject presents many points, some of which are both interesting and difficult. It is not my intention, however, to enter ■on a formal discussion of any of them, but merely to state the grounds on which my assent- is given to the decision of the court, which is, that the payment of the money by Starling, whatever-may have been the original object of it, is not now to be considered as an extinguishment of the mortgage debt, but the consid
In relation to the appraisement, two questions are presented:
1. Did the law relating to this mortgage require an appraisement of the land before the sale?
2. If it did, does the omission of the appraisementvitiate the sale?
First. The mortgage to Langdon was executed in 1805. The judgment on it was rendered in 1809. The act under which the proceedings were had, was passed in 1805, and provides “that the mortgaged premises shall be taken in execution and disposed of in the same manner, and under the same regulations, that lands are, or may be by law ^disposed of for the satisfaction of judgments.” I take it to be the true construction of this act that whenever the sheriff receives an execution on a judgment, rendered on a mortgage, he must proceed in all respects, as is directed by the act regulating the sale of land on ordinary judgments, that may happen to be in force at the time when the execution is put into his hands.
The execution on this mortgage came to the hands of the sheriff in 1809. The law of 1808, regulating judgments and executions, was then in force, the first section of which provides, that if execution be levied on land, thé officer shall call an inquest of five reputable freeholders, and the inquest shall, on oath or affirmation, return to said officer, under their hands and seals, an estimate of the real value of said estate, on actual view of the premises. This being the act by which the sheriff was to be governed, the first question admits of no doubt; it was the sheriff’s duty to cause the land to be appraised.
Second. On the second question I am so unfortunate as to differ from the majority of the court. It is their opinion that that part of the law, which relates to the appraisement, is directory to the sheriff, and that an omission to attend to it will not be fatal to the title of the purchaser, unless the exception be made before the execution of the sheriff’s deed.
The impression made on my mind, by the most careful attention that I have been able to give the' subject, is, that the appraisement is a condition precedent, without which the sale is absolutely void. The statute, after requiring the sheriff to cause the estate to be appraised, as above, proceeds, “ and the said officer, receiving such return shall forthwith deposit a copy thereof with the
If the act had given an unqualified power to sell, and had then-pointed out the mode of proceeding, including the appraisement, it might have .been considered as directory to the officer. But admitting that it was the design of the act to make the appraisement a condition precedent, and not a direction merely, it would be difficult to select terms better adapted to the purpose, or to give them a better collocation.
I do not discover anything in section 21 of the act of 1810 which authorizes the court to amerce the sheriff, at the instance of either party, for proceeding to sell without appraisement.
It provides, among other things, that if the sheriff shall refuse >.o sell, or shall neglect to call an inquest, or shall refuse to pay the plaintiff all money made for his use, or shall refuse to pay to-the defendant any surplus that may remain, after satisfying the execution, he shall be amerced, etc., for the use of said plaintiff or defendant, as the case may be. The three first omissions are injurious to the plaintiff alone, and therefore entitle him to move against the sheriff. The first is injurious, by delaying the collection of the money, which can not be effected without a sale. The-second is injurious, by delaying the sale, for without an appraisement the sale can not legally be made ; and the third is injurious,, being an illegal detention of the money. The fourth is an injury to the defendant, and for that, and that only, he may move against, the sheriff. The provisions of this section are separate and distinct, neither of them relating to a sale without appraisement.
In considering this question, it should be borne in mind that at-
*It was the policy of the English law to protect real estate from such sales, and when our legislature saw proper to change that policy, they did it under limitations and restrictions. The case stands thus : The language of the common law is, lands shall not be sold on execution. The, language of our statute is, they may be sold; provided they are first appraised, and then sold for not less than a certain proportion of the appraisement. The statute does not subject them to sale, nor give the officer a power to sell, till they are appraised; of course, before the appraisement, they remain as they were at common law, and can not be sold.
Ohio is essentially and necessarily an agricultural state. It has, therefore, been her policy to guard against the ruinous consequences of sacrificing real property, by forced sales ; and without such a guard, the cultivators of the soil, who form a large majority of our population, could not have been easily induced to change the common law in this particular.
It may, perhaps, be said that the construction given by the majority of the court puts it in the power of every defendant to avail himself of this guard. But how often does it happen, as was the fact in the ease now under consideration, that judgments are obtained against non-residents and infants, who have no notice; and that executions issue against residents, when absent from the state, who have no knowledge of the proceedings till it is too late to object.
It will be recollected that by the law of 1805 the sheriff was not directed to summon appraisers, unless the defendant requested it. The consequence was, that persons absent from the state, or unacquainted with legal proceedings, lost the benefit of the provision, to remedy which, the inquest was directed in all eases, and it is worthy of inquiry, whether the construction now given does not subject the present law to the same difficulties and objections which were complained of in the act of 1805, to remedy which this law was, in part, intended.