Barnes v. Kerlinger

[87] By the Coiort Emmett, O. J. The facts stated in the complaint in this action do not in our opinion entitle the Plaintiff to the relief asked for; nor do they justify or authorize the judgment which was rendered on' the overruling of the Defendant’s demurrer. Such a state of facts might have been •sufficient to induce the Court to aid the Plaintiff in obtaining ■the benefit of his purchase, by an order permitting him to ‘supply the proper evidence thereof, or by compelling the offi•cer to give and file the certificates provided [for by statute ; •and also to modify the Sheriff’s return, and the entry of satisfaction of the judgment, so as to conform to the amount or sum actually realized by the sale ; but the court was not justified in disregarding the sale altogether, and annulling the return of the officer, and entry of satisfaction in toto. The sheriff in making sale of the property, acted as the agent of both parties ; and neither should be deprived of any benefit to be derived from the authorized acts of this officer, because of any omission to furnish the proper certificate thereof, unless he is in some way chargeable with the omission. The sale having once been legally made, the purchaser is entitled to the property at the price agreed upon, how' much soever it may since have increased in value ; while, on the other hand, the judgment debtor or owner has an equal right to the benefit of the sum for which it was sold, however great the subsequent depreciation; and should the sheriff after-wards, for any cause, be unable-or unwilling to furnish evidence of the official act of selling, we see no reason why the Court, upon a proper showing, should not interfere to enable the party aggrieved to supply the defect by proofs other than that directed by the statute, or to compel the officer to do his duty. But the Court should not undertake to undo what he had regularly done. If a levy on property is regular and valid, it is not affected by the subsequent sale, though the sale may be v^id or voidable. And so too if the proceedings are all valid and regular up to and including the sale, there; is no reason why the sale should be vitiated, though by reason, of the subsequent conduct or neglect of the officer, the evidence of it may not be completed in the manner directed by the statute. [88] Suppose tbe Plaintiff in the present case, instead of’, alleging the absence of the sheriff and his neglect to give a certificate of sale to the purchaser, cr to file a duplicate with the register of deeds, had averred that he had died, immediately after the sale, aud before giving or filing such certificate or duplicate, thus showing that it is utterly impossible to comply strictly with the Statute in this respect : is it for one moment to be supposed that neither party could have insisted on supplying evidence of the sale in any other manner, and that the sale, which is admitted to have been regular in every respect, is rendered absolutely void, because the sheriff, failed to give or file a certificate of the fact? We do not recognize any such doctrine. But, it is urged, by the Defendant below, that the Plaintiff is entitled to no relief whatever, because he does not allege a demand of the certificate of sale and duplicate thereof, nor that he ever tendered the necessary fees therefor. The statute authorizes the sheriff to collect the fees for the certificate and duplicate on the execution ; and' it would therefore appear that, when the property is sold to a third person, the sheriff would be bound to make out the certificate of purchase, and file a duplicate thereof with the register of deeds, because he has already collected and has in his hands the necessary funds for this purpose; but whether he is obliged afterwards to seek out the purchaser, and deliver to him the certificate without demand, may admit of serious doubt. Yet wdien the Plaintiff himself becomes the purchaser the sheriff has nothing in his hands to pay fees, but must of necessity look to the purchaser, and he should not be expected to give or file certificates of sale, until his fees therefor are forthcoming. We do not propose however to determine the present case upon this point, inasmuch as the Plaintiff below is entitled to the benefit of his purchase, even although he may have neglected demanding the proper certificates thereof from the sheriff. Still the relief to wdiich he is entitled is not such as he has demanded in his complaint. He has the right to furnish other evidence of his purchase, if the sheriff’s certificate cannot be obtained; and also to have the sheriff’s return, and the entry of satisfaction of the judgment so modified as to conform to [89] the amount for which the property was sold. But as he does not- ask for this specific relief, and there is no prayer for general relief, under which we might afford him such as he is entitled to, we must reverse the judgment and remand the case with instructions to enter judgmeut for the Defendant upon the demurrer, unless the Plaintiff be permitted to amend his prayer for relief.