Buehler v. Rogers

The opinion of the court was delivered, by Agnew, J. Owing to the defective statement of the case in the court below, a defect not apparent at first sight, we have experienced much difficulty in arriving at a conclusion in this case. The levy and inquisition are not so set forth in the statement as to make it certain that the identical tract sold by the sheriff to Mrs. Buehler, and described in the deed, was levied upon and condemned. Her title will depend on the levy and inquisition which are not acts of record, but were done by the sheriff in pais. The venditioni exponas would be without foundation, and confer no authority to sell, if these be wanting and cannot be supplied by legal evidence: Crowell v. Meconkey, 5 Barr 175; Shields v. Miltenberger, 2 Harris 78, 79; Gardner v. Sisk, 4 P. F. Smith 506; St. Barth. Church v. Wood, 11 Id. 96. The docket-entry of the fi. fa. merely states “ real estate levied on and condemned.” . At first it might be supposed this meant the real estate afterwards sold; but this is not admitted by Mrs. Buehler, for in the close of the stated case she denies her liability, “ for the reason that the said writs of fieri facias and venditioni exponas and the sheriff’s returns thereon cannot be found, and that the above-recited proceedings vest no title in her,” It is obvious, therefore, as the only ground of objection to the sale can be the want of authority in the sheriff to sell, she must have objected on the ground that there was nothing to show that the tract she bought at the sheriff’s sale was levied on and condemned. There is an entire absence of description and identity to support the issuing of the venditioni exponas. It is proper, therefore, that instead of deciding this cause on a statement so dubious on this point, the case should go back for a trial when proof of the land levied on and condemned can be made. Otherwise we might do injustice by a decision ; on the one hand involving the sheriff’s estate in liability for the bid, or on the other compelling Mrs. Buehler to accept a [13] doubtful title. It is to be observed, this is not a doubt covered by the maxim caveat emptor, which applies to the title of the defendant in the writ, but a doubt of the authority to make the sale. Under the circumstances, we think it better to reverse the judgment, quash the stated ease and send the cause hack for a jury trial. Judgment accordingly.