29 Ohio St. 636 | Ohio | 1876
Objections on behalf of the plaintiffs in •error are urged against the confirmation of the sale below, as follows:
1. That the wife of the mortgagor was a necessary party to the action below, before the decree of sale could be ■made, and that she was entitled to a homestead in the mortgaged property.
3. That the property was not sold for two-thirds of its ¡appraised value.
4. That notice of the time and place of sale was not advertised for the full period of thirty days before the day .of sale. '
Of these iii their order :
1. The wife of the mortgagor was not a party to the mortgage; therefore, she was not a necessary or a proper party to a suit for its foreclosure. The mortgage having been executed before the intermarriage of the plaintiffs in •error, was as effectual to defeat a right to a homestead in the mortgaged estate as if, after the marriage, it had been executed by the husband and wife. ■ Tlie only interest which the husband had in the property at any time after he became the head of a family was a mere equity of redemption, and therefore the light to a homestead in the mortgaged premises, either upon his own demand or on that of his wife, was subject to the mortgage.
2. There is no pretense that the supposed defect in the description of the land at all affected the price for which the property was sold. This being so, the validity of the purchaser’s title was a matter of his own concern. Neither the judgment debtor, nor his wife as claimant of a homestead in the property, could be prejudiced by any defect in the purchaser’s title. The purchaser being content with the title, the plaintiffs in error liad no interest in defeating the confirmation on this ground.
3. The return of the sheriff upon the order to appraise and sell shows that the premises were sold for more than two-thirds of the appraised value. Upon the record before us, we think the question must be determined by that return ; because: 1. The certificate of appraisement as made by the appraisers was not embodied in the bill of exceptions, so that we have no evidence before us- that the valuation was forty-five dollars per acre, instead of $7,200 for the whole tract, as returned by the sheriff. The copy of
We do not wish, however, to be understood as approving, implicitly or otherwise, the practice of selling-land for a gross sum, where the only valuation of the appraisers is by the acre, and the quantity named in the writ is merely estimated. The better practice in such case, unquestionably, would be to make the sale upon the same basis that the appraisement is made. In such case the estimated quantity is prema facie correct, but any person interested should be allowed to show a mistake in the estimation ; and if it turns out that the sale was for a less sum than two-thirds of the real appraisement, the sale should be set aside.
4. The law regulating sales upon execution governs this case. By section 486 of the civil code, it is provided that notice of the time and place of sale on execution shall be-given “ for at least thirty days before the day of sale, by advertisement in some newspaper printed and of general circulation in the county,” etc. “ Where such advertisement is made in a newspaper published weekly, it shall be sufficient to insert the same in five consecutive numbers thereof.” When published in a daily paper, it is sufficient to insert it in the paper once a week for five consecutive-weeks, but in such case it must appear on the same day in each week. The requirement that the insertion must be-on the same day of each week relates only to eases of publication in a daily newspaper. Although weekly newspapers are usually published on the same day of the week,, there is no law requiring that it must be so. Hence, where-the advertisement is make in a weekly paper, it is not essential that it appear in numbers' published on the same-
In the ease before us, the first number in which the notice was inserted was published on the 1st day of December, and the sale took place on the 31st of the month. We are of opinion, therefore, that the period of advertisement was sufficient, notwithstanding the first number of the weekly newspaper in which it appeared was published one day in advance of the usual day of publication.
Motion overruled.