Gregg v. Strange

Smith, J. This was a proceeding on notice and motion to have satisfaction entered upon a judgment. Gregg obtained a judgment against Strange in April, 1842, for 609 dollars. A venditioni exponas issued in October, 1848, to sell certain real estate of Strange, which had previously been levied upon to satisfy said judgment, upon which the sheriff made return that after having the premises appraised under the law of 1841, he sold the same to one Wygant for 50 dollars, that being more than one-half the appraised value, after deducting all prior liens, and that Wygant being the agent for the judgment-plaintiff, a credit for the sum bid was entered on the judgment, and a deed was executed to Wygant. The land was appraised at 2,400 dollars, and the incumbrances were stated in the report of the appraisers to be 2,557 dollars and 25 cents. The appraisement was made on the 2d of March, 1849, and the sale was made on the same day. Strange having given the judgment, appraisement, and return of the sheriff in evidence, then proved that, prior to the 2d day of March, 1849, all the liens taken into account by the appraisers had been discharged, except about 800 dollars. J. S. Harvey, J. Morrison, and S. Major, for the plaintiff. C. C. Nave, for the defendant. Gregg then proved, by a witness introduced by him, that a short time after the sale the sheriff called on the witness and requested him to draw a sheriff’s deed for the land to Wygant, but upon examining the venditioni exponas and the notices of sale, it was found that there was a variance between the description of the land in the writ and in the notices, and no deed was ever made either to Wygant or to Gregg. This evidence was objected to but it was admitted. This being all the evidence, the motion of the plaintiff was sustained, and it was ordered that the judgment be entered satisfied. We are of opinion that the facts disclosed do not show a satisfaction of the judgment. The mistake made in selling upon the supposition that incumbrances existed which did not exist, might afford grounds for setting aside the sale, but the purchaser could not be compelled to take the property at a price consisting of the amount of his bid and the amount of such of the incumbrances as had been removed. The sheriff’s return was only conclusive against himself, and would not preclude a bidder from showing that he had received no deed. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.