It

missioners is the act of the county," must be taken in a restricted sense. would be mischievous, as well as unprecendented, to hold the county answerable for their tortious and illegal proceedings.

BUCKINGHAM & Co. v. GRANVILLE ALEXANDRIA SOCIETY.

Upon a motion for an order to the sheriff to make a deed the court look only to the execution on which the sale was made, and the proceedings under it.

This was a motion for an order to the sheriff to make a deed for lands sold on a fi. fa. It was certified to the Supreme Court of Licking county, from the court of Common Pleas of that county, for the want of constitutional quorum of disinterested judges to decide it, and was reserved for decision at Columbus. The facts were these:

At the October term, 1820, of the Common Pleas, the plaintiffs recovered judgment against the defendants for $3,752 62. Upon this judgment a fi. fa. issued in April, 1821, and among other property was levied on S. half Qr. 3, T. 4, R. 13, and on another tract of twenty-two and a half acres, on which the Granville furnace was erected. These lands were mortgaged to the Bank which was defendant, and the levy was made in conformity with the provisions of the act of February 2d, 1821, providing for the collection of debts due from banks and bankers. The amount of debt due upon the mortgages and the value of the property were found and appraised according to law, and the sheriff returned that the lands were not sold for want of buyers.

At the September term, 1822, on the motion of the plaintiff's in execution, the levy and appraisements were set aside by the court. At the next succeeding term, May, 1823, the plaintiffs moved the court to rescind the order of the previous term setting aside the levy and appraisement. This motion was continued for decision, and at the December term, 1823, an order was made rescinding the previous order, and restoring the parties to all the rights they had secured previous to the order of September term, 1822. At August term, 1824, the appraisement made upon the first. fi fa. was set aside, a new appraisement directed, and leave given to the plaintiffs to release so much of the levy as they might choose. A new appraisement was had, and the property bid off, at two thirds of that appraisement, upon which this application for the order directing a deed was made.

Ewing, for plaintiff. Irwin, for defendants.

JUDGE SHERMAN, did not sit, having been counsel in the cause.

Opinion of the Court, by Judge HITCHCOCK.

This motion was originally made in the court of Common Pleas of Licking county, and there not being a quorum of disinterested judges in that court to determine the question, it has been certified to this court for decision, according to the provisions of the sixty-eighth section of the practice act. (State Laws, vol. 22. page 64.)

It is necessary in this case, as in every other, to enquire what is the matter in controversy, what is the question to be decided? The application is for an order upon the sheriff, to make a deed to the purchaser of certain lands, by him sold on execution, at the suit of the plaintiff, against the defendants. The case must be considered in the same light, as if the execution had been issued from this court. In such case we should not have gone back to enquire whether the judgment upon which the execution had issued was erroneous, or whether an improper order had been made for issuing the execution. If the execution had been improvidently issued, the party injured thereby would not be without redress. The proper course for him to pursue, would be to move to have the execution, or the proceedings under it, set aside. Upon such motion the court might with propriety travel back and enquire, whether subsequent to judgment, there had been any thing irregular in their own proceedings, or in the conduct or proceedings of their officers.

Counsel for defendants in argument treat the question as if it arose upon a motion to set aside the execution and proceedings, or as if the proceedings had been removed from the court of Common Pleas, to this court, by certiorari, for irregularity. In this they mistake the point in issue. Admitting that there was so much irregularity in the proceedings, that the court would, upon a proper application set them aside, still it does not follow that the motion now under consideration must be overruled. We certainly are not acting as a court of errors, to review the proceedings of the court of common pleas. We are in ef fect acting as a court of Common Pleas. That court not being competent, in consequence of interest in some of its members, to decide the motion submitted to them, the duty of making the decision, is by virtue of the statute transferred

to us.

Upon a motion to set aside an execution, as has been before observed, the court can with propriety examine the previous proceedings to ascertain whether there has been any irregularity in the orders of the court, or in the proceedings of the clerk; but upon a motion similar to the present, I apprehend we can look no further than to ascertain whether the officer in making the sale has pursued the law. I infer this from the nature of the application, and from the words of the statute. These words are as follows, "provided, that if the court to which any execution shall be returned by the officer, for the satisfaction of which any lands and tenements may have been sold, shall, after having carefully examined the proceedings of said officer, be satisfied that the sale has been made in all respects in conformity to the provisions of this act, they shall direct their clerk to make an entry in the journal, that the court are satisfied of the legality of such sale, and an order that the said officers make to the purchaser a deed for such lands and tenements."

Let us enquire then whether the sheriff in making the sale, complied with the requisitions of the law. From the documents before us, it is manifest, that he caused the lands to be appraised "by five respectable disinterested freeholders" of the county, that these freeholders were by him duly sworn before they made the appraisement, that the said appraisers made a return to him of their ap praisement, "under their hands and seals," that he forthwith thereafter, deposited a copy of the return "with the clerk of the court from which the writ issued, and that the property was sold for two-thirds of the appraised value. It is fur

ther manifest that he gave public notice of the time and place of sale, for more than thirty days before the day of sale, by advertisement in a public newspaper, printed in the county of Licking, the county in which the land lies, and that the sale took place at the court house in said county.

I am at a loss to discover in what particular the officer has failed in his duty. In fact the complaint is not so much with respect to the officer, as to the court. Upon the whole, "after having carefully examined the proceedings" of the officer; I am "satisfied that the sale has in all respects been made in conformity to the provisions" of the statute, and that the order must be made according to the request of the plaintiff. Let it be made accordingly.

Dissenting opinion of Judge BURNET.

Having dissented from the opinion of the court in this case, it becomes my duty to assign the reasons which have induced me to do so. The cause having been certified to the Supreme Court, for the want of a constitutional quorum of disinterested judges to hear and determine it, in the court below, it necessarily comes before us as it stood before them, and it is our duty to examine the proceedings as though they had all taken place in this court, for the purpose of ascertaining whether they have been such as to entitle the applicant to the benefit of his motion.

I am so unfortunate as to differ from my brother judges, who have taken a part in the decision of this case, at the very threshold, as to the extent of the ground we are authorized, or required to occupy. They draw a very marked distinction, between this investigation, and that which would be proper on a mo. tion to set aside an execution. I confess that I do not discover any difference in the latitude of enquiry that is admissible or necessary in the two cases. I do not contend that the court can go behind the judgment in either case, but I do contend that the object of this procedure cannot be attained without a thorough investigation of all the proceedings subsequent to the judgment, that are connected with the execution and sale, whether they emanate from the sheriff, the clerk, or the court. If, on an application like the present, it should appear that there had been no judgment, or execution, or levy, or that the officer had proceeded to sell after the court had set aside the execution, or if it should appear that the levy and appraisement had been set aside before the sale, as was the fact in this case, would we be justified in shutting our eyes upon these discove. ries, and blindly ordering a deed to be made to the purchaser? I am constrained to answer in the negative. This answer would be forced upon me, by the strict letter of the statute, were I at liberty to overlook the spirit and design of it. In conducting this enquiry, the statute requires three things.

1. The court must examine the proceedings of the sheriff, to ascertain, if they have been regular.

2. They must be satisfied that the sale has in all respects been made in conformity with the provisions of the act.

8. They must be satisfied of the legality of the sale.

If, on the first branch of the enquiry, the proceedings of the sheriff should appear regular as to the levy, appraisement, return, advertisement, and mode of sale, it would not necessarily follow that the sale had in all respects been made in conformity to the statute- Other parts of the statute might have been viola

ted. When we speak of the legality of a sheriff's sale, we understand that all the proceedings connected with it, from the issuing of the execution, to the striking off of the land, has been regular. To confine the import of that term to its literal signification, which is the simple act of crying off the premises, would be a narrow interpretation indeed. The maxim qui heret in litera, heret in cortice, would well apply. Although the acts of the sheriff, in themselves con. sidered, might be unexceptionable, yet if it should appear that the execution on which he acted, had been issued by a justice of the peace, or that there had been no levy, or that the levy and appraisement had been regularly set aside before the sale, it could not be said, that the sale had, in all respects, been made in conformity with the act, nor would the court be satisfied with the legality of the sale, because such circumstances would render the sale a perfect nullity, and clearly show that the purchaser was not entitled to a deed. Such facts as would avoid a deed after it was made, ought to be sufficient to withhold an order for making it; but on the limited construction which has been given to the statute, the provisions which are most essential to the legality and validity of the sale, must be disregarded. The act requires an execution founded on a judgment of a court having jurisdiction of the subject matter, on which there must be a levy and an appraisement. These are provisions of the act, and if they have not been performed, the court cannot see that the sale has, in all respects, been made in conformity with them. If a statute provides that there shall be a levy and an appraisement, before a sale, and the sale be made without a levy, it appears as plain as an axiom, that the sale is not made in all respects in conformity with the provisions of the statute, because a levy is one of those provisions. If such matters as these are not to be regarded, this investigation must be a useless sacrifice of time. The form might be dispensed with, and

the deed executed at once. From this view of the subject, I feel it my duty to examine the objections to the levy, including the orders of court in relation to it, as well as the objection to the appraisement and sale.

The defendant objects

1st. Because the statute under which the levy was made (1821) had been repealed before the issuing of the vend. expo. on which the sale was made.

2d. Because the levy on which the sale was made, had been set aside by the court, on motion, and at a subsequent term had been reinstated.

3d. Because the lands had not been separately appraised, as the statute di

rects.

4th. Because the sheriff rejected a part of the land levied on and embraced in the mortgage, and refused either to value or sell it, on an allegation that the title of the mortgagor was defective.

It appears from the record, that the plaintiff obtained judgment against the Granville Banking Company, and proceeded to levy an execution, on sundry tracts of land, mortgaged to the bank, by three separate deeds. The levy was made in April, 1821, under the act of 1820, which was repealed by the act of 1822; the act of 1822, was repealed by the act of 1824, under which the sale was made.

In September, 1822, the court of Common Pleas set aside the whole levy, on motion of plaintiff, the premises having been twice offered for sale. At the December term, 1823, the court on motion rescinded the order of Septemcer, 1822,

and directed the levy of April, 1821, to be reinstated.

In the interval, a num

ber of executions were issued on judgments at the suit of other creditors, and levied on the same property, by which those creditors claimed the preference. The different tracts contained in the mortgages were not separately appraised, and a part of the mortgaged property was relinquished by the sheriff, on the ground that the title of the mortgagor was defective. These are the most important facts relating to the points that are to be considered.

1st. I agree with the majority of the court, that the first objection cannot be sustained, because the repeal of the law under which the levy was made, did not affect the execution previously issued, or the levy that had been made on it. 'The proceedings as far as they had gone, were valid. The levy was as operative after the appeal as before it. The new law affected only those proceedings The principle assumed by the defendant,

that took place after it came in force.

would be inconvenient and mischievous in its consequences.

The act regulating judgments and executions, has been frequently changed, and if the repeal of one law, by the substitution of another, should render void the steps that had been previously taken, it would be difficult for judgment creditors to recover their money, as every revision and repeal, would make it necessary to commence de novo, so that it would be impossible to calculate when their labors would come to an end. And it may be remarked that the last statute refers to judgments, executions, and levies previously made, and by a fair construction, recognizes them as valid.

It has been decided in this court, in several analogous cases, under the prac tice act, and under the act in question, that such a change as has taken place in this instance does not affect proceedings which have been had, or rights which have been acquired prior to the change, unless it be expressly so directed. It was not necessary for the plaintiff to obtain a new writ and a second levy.— (vide, G. Arnold vs. Fuller's heirs, 1 Ohio Reports, 450.) The authorities cited by defendant's counsel, in support of this objection do not sustain it. Milner's case (cited from 3 Bur. 1456, and 1 Black. Rep. 451) is not applicable. That was a special jurisdiction, given to the justices by a statute which had been repealed "to all intents and purposes whatsoever," without providing any substi tute. All jurisdiction had been taken away in express and strong terms, and the question was not whether the steps that had been taken were regular, but whether the justices were authorized to proceed any further in any form. The same remark applies to the case of Hollingsworth vs. Virginia, (3 Dall. 378.) That was also a question of jurisdiction. By an amendment to the constitution, the jurisdiction of the court had been entirely taken away, and they were necessarily compelled to stay further proceedings. But such was not the fact in this. case, the subject matter in question was, and continued to be, within the jurisdiction of the court, and the change in the law, operated only on the proceedings that should subsequently take place.

'i he execution and levy had been regularly and legally conducted, and as the whole process of execution, is one entire act, the proceedings after the levy, relate back, and take their effect from the date of the levy.

Pasmore's case, from 4 Dall. was an indictment for perjury, founded on the bankrupt law of the United States. It was pending when the law was repealed. The court determined that the case was not within the saving clause, and the defendant had a verdict. Duane's case, from 1 Binney, was an indictment for