Lessee of Patrick v. Oosterout

By the Court. The question presented in this case is an important one, as it may involve property to a large amount; but we are not at liberty to dispense with a legislative provision, whatever may be the consequence of enforcing it. It is our duty to inquire what the law is in this, as in every other case, and having ascertained it, we can not turn to the right hand or to the left. The inconvenience or hardship of the case we can not remedy, however we may regret it. The defendant’s counsel have placed the question on its true ground, that a man can not be legally deprived of his estate unless the provisions of the law by which it is taken are substantially pursued. The objection to the plaintiff’s title is,that the appraisers were not sworn. It is contended that this was a necessary step in the proceedings, and that it ought to have been returned by the officer. The statute puts it beyond all doubt that the “ inquest shall return on oath or affirmation to the sheriff,” etc. The officer can not-be said to have caused an appraisement to. be made unless the oath has been administered and a certificate of the fact accompanies the return. From the statute it would seem that the ministerial act of the sheriff ceases, so far as it respects the.appraisers, when he has assembled them. It does not appear to be any part of his duty, by the law under consideration, to swear or affirm the inquisitors, or to cause it to be done. It would be a- fair construction of the law, that the appraisers themselves should take an oath before some judicial ^officer, and whether the same should be certified by the person who administered it or by the appraisers, this court would deem immaterial. Such seems to have been the decision in the case of Atherton v. Jones, cited by the bar. The court there, in speaking of the mode of making return of the appraisement, as it regards the oath of the inquest, say: “It is true he may return it [the justice’s certificate], but we think he may also return it in substance.” “ That he has done in this case, and such a course is warranted here both by precedent and practice.” "We accord with the opinion expressed by the court of New Hampshire. The court ought not to require evidence of every minute circumstance, from the execution to the sheriff’s deed; but they can not dispense with the substantial requisitions of the statute. Amongst these undoubtedly the oath of the appraisers is not the least important. The duties of the appraisers are not merely min [32] isterial; they have the stamp and character of judicial proceedings, and those too of vital importance to the community. The appraisement of real property, in a state like ours, before it can be subjected to sale for the discharge of debts, is highly beneficial, not only for the security of debtors, but of creditors also. This is not a question of policy merely: it is one, however, upon which the court may, and in some cases must, exercise a sound discretion. But in the absence of testimony we are now called upon to presume that the appraisers made their return upon oath. Might not the court, with equally legal propriety, dispense with the appraisement altogether? Might we not as well presume, on the exhibition of a sheriff’s deed, that there has been a judgment and an execution ? Under our statute a sale, without any appraisement, Would be clearly void. The authority to transfer the fee by operation of law, is a mere statutory provision. This authority, in Ohio, is limited and conditional. 1. The estate must be appraised on oath. 2. It must sell for two-thirds of the appraised value. These are conditions which must appear to the court to have been complied with before they have any authority to ratify a sale. It is insisted that the party injured is not without remedy. It is said he may sue the sheriff and recover all that has been lost by the officer’s negligence or misfeasance. With this question we have no concern in the present case, but admitting an action would lie against the sheriff because the appraisers did not make their return on oath, the remedy would be frequently inadequate. The court, however, are of opinion that the sheriff has no control over the appraisers. He appoints them, indeed, but it is not his duty to *swear them or cause it to be done, nor does there appear to be any authority given him bylaw to coerce them into a performance of duty. But be this as it may, a power limited and conditional must be carefully pursued. Some things may be presumed in favor of a purchaser; but he must see that the authority under which he purchases has been substantially pursued. The vendor must have authority to sell, or the purchaser takes nothing. It is not necessary in this particular case to decide whether this defect in the return of the appraisement might be supplied by parol evidence. The counsel for the plaintiff suggested at last term, that he would endeavor to procure such testimony. None such has been offered, and we are informed that none exists. Hard as the case may appear on the part of the purchaser who has paid [33] •his money, the law constrains us to say he can take nothing by his purchase. We are of opinion that the appraisement constitutes •an essential part of the proceedings in the sale of lands under an ■execution, and unless the appraisers are sworn, the appraisement ás void. Let the judgment be entered upon the verdict.