Humphry v. Beeson

Opinion by

Richard Beeson commenced this suit by an action of right, for the west half of south-west quarter of section twenty-seven, in township seventy-seven north, range two west, being in the county of Muscatine. A declaration and plea to the merits were filed in the form prescribed by the statute regulating the action of right, and the cause was submitted to a jury. On the trial, the plaintiff offered in evidence a deed from the sheriff of Muscatine county, conveying *213to him the land in dispute. It appears that the sale, upon which the sheriff’s deed was given, had been made to satisfy a judgment rendered in October, 1844, in favor of Jeremiah Burge, against Charles Mattoon. The plaintiff then gave in evidence the record of a deed from Humphry to Mattoon, to . show that the title was in him at the rendition of the judgment.; and testimony was also offered, tending to show a possessory title.

1. The defendant objected to the admission of the sheriff’s deed, first offered in evidence, on the ground of a variance in describing the execution and in reciting the decree upon which the execution issued. The judge ruled upon this point, that the discrepancies were not material and could not invalidate the deed, if the jury believed that it vías derived from and made under the decree.

2. The defendant then objected to the sheriff’s returns on the execution, as it did not appear that notice had been served upon the execution defendant as required by statute.

3. He then showed by the returns, that the sheriff, in satisfaction of the execution, had levied upon and sold more land than was necessary, at two-thirds its appraised value, to satisfy the execution. That the land was level, and had no other improvement than an inclosure of about fifty acres, with thirty acres of the field in cultivation, and that the agent of the purchaser had notice of the fact. It w'as proved that the only objection to dividing the property was, that it would more or less depreciate its value. The defendant claimed, and desired the court to rule, that by disposing of more land than was necessary to satisfy the decree and costs, under the circumstances, rendered the sale of the sheriff irregular and void; but the judge ruled otherwise.

Other questions arose upon the trial of this cause, but as they have not been urged by counsel, and cannot affect the decision, it is not necessary to notice them.

Verdict and judgment for the plaintiff in the court below. The three objections above referred to, are urged by the plaintiff in error to reverse the judgment. As the three points *214urged, and the law pertaining to them are ably reviewed by the arguments of counsel, it is only necessary to give a brief statement of our decision upon them.'

1. The variance complained of is merely in figures, in reciting the amount to be made by the execution, and the amount of the decree. We have no evidence before us, in a legitimate form, showing the alleged variance. Our statute declares the deed of the officer, selling the land, to be prima facie evidence of the regularity of his proceedings. Rev. Stat. p. 630, § 3. But conceding the variance to be as great as is claimed by plaintiff’s counsel, it cannot produce the effect of invalidating the sale. The recital of the execution in a sheriff’s deed is not essential to its validity; and, as a consequence, any variance or mistake in such recital, can have no impairing influence. The authorities cited by defendant’s counsel we regard as conclusive upon this point. Such a variance should be regarded as immaterial, so long as the origin of the deed is clearly traceable to an authentic source; and the irregularity complained of can work no injury to the parties concerned.

In Perkins v. Dibble, 10 Ohio, 433, it was held that a sheriff’s deed, which recites enough to show his authority, is good, even if it does not contain all that is required by statute. So also in Armstrong v. McCoy, 8 Ham. 128.

In Huggins v. Ketchum, 4 Dev. and Batt. 414, a sheriff’s deed, containing an erroneous recital of the power under which the sale took place, was held to be good; and it was also held that it must be presumed until the contrary is shown that the officer sold the property under the appropriate execution.

That a variance between the deed and execution, or a misrecital in the deed, is not a valid objection to its admission in evidence; see, besides the authorities cited by counsel, the case of Cherry v. Woolard, 1 Iredell, 438 ; Driver v. Spence, 1 Ala. 540.

2. Notice to the execution defendant is an essential prerequisite to a sale (Rev. Stat. p. 633, § 9) ; but we are by no means satisfied that the notice must appear in the officer’s returns, in order to render a sale valid. It is true, that the *215returns should show service of the requisite notice, and the officer is negligent and censurable who omits so important an item of duty; but still, it is not such an irregularity as will justify a court in setting aside a sale, made, to an innocent purchaser, who had no notice of such /irregularity; even if the execution defendant had not been notified of the sale.

Though the requirements of the law should be substantially observed, when the title is to be .divested ; still, the rights of bona fide purchasers should also be protected. Mere omission, or irregularity in the proceedings of the officer, cannot impeach his deed, when supported by an operative and unsatisfied judgment. Besides, even though the sheriff’s returns do not state the fact, the notice will be presumed till the contrary appears; unless the question is raised on a motion to quash the execution, or set aside the sale, before the deed is executed and the purchase-money paid.

In Lawrence v. Speed, 2 Bibb, 401, it was determined that a sale of property; on execution, is not rendered void by the failure of the sheriff to advertise according to law, unless such failure was through -fraud, of which the purchaser had knowledge. So far have courts gone in protecting the - rights of bona fide purchasers, that they have adjudged the property to them, although the judgments from which the sales, proceeded were afterwards reversed, Reardon v. Searcy, 2 Bibb, 202; Coleman v. Trabue, ib. 518 ; Sneed v. Reardon, 1 A. K. Marsh. 217. And in Doe v. Heath, 7 Blackf. 156; it was determined where a purchaser, at a sheriff’s sale, had paid his money, and received a deed for the land, that his purchase could not be prejudiced by the imperfect return of the sheriff, nor by his making no return at all.

3. It is objected that more-land was sold than was necessary to satisfy the execution, and that the purchaser had notice of the fact. We see nothing in this proceeding inconsistent with the valuation law, under which the sale was made. In the third section, (Rev. Stat. p. 680,) we find it “ provided, that said sheriff, or other officer, making such levy, shall, when- ' ever the said lands are divisible, levy on such part, and so *216much thereof, as may be sufficient to satisfy such execution.” The 26th section of the same act provides, that whenever the land sells for more than enough to satisfy the execution, with interest and costs accruing thereon, the overplus shall be tendered to the defendant. Thus it appears that the sheriff is directed to levy upon land enough to satisfy the execution; and if it sell for more than enough, to refund the excess to the defendant. When tho levy is made, the officer cannot tell how much will be necessary to satisfy the interest and cost on the execution, especially when the day of sale may be postponed two or three times; or in case the property should not sell, or be taken by plaintiff in execution, at two-thirds its appraised value, the property should “ not be offered for sale again on said execution, order, or decree, for the term of twelve months thereafter.” Rev. Stat. p. 630, § 3. Had this sale been thus delayed, it is probable that the property levied upon, at two-thirds its value, would not have amounted to more than enough to satisfy “ execution, interest, and costs.” As it is impracticable for the officer to know the precise quantity of land necessary to satisfy an execution; and, as the statute clearly does not contemplate that the exact amount, only, shall be levied and sold, we are led to the conclusion, that this objection is not well founded. We believe, under this statute, the officer is authorized to levy upon land enough; and if he should levy upon, and sell a little more than enough to satisfy the execution, his proceedings are not therefore nugatory; but, in levying upon lands, the officer must be restrained by reasonable bounds; and if, in levying upon congressional subdivisions of land, there should be an excess over all execution claims, of the least legal subdivision, it should not be sold-; or, if sold, such excess might be released to the execution defendant, on motion in the court below.

With a proper regard to the legal rights of the bona fide purchaser in this case, we cannot do otherwise than affirm the proceedings of the court bolo at.

Judgment affirmed.