Merritt & Kempton v. Borden

2 Disney (Ohio) 503

• Court: Ohio Superior Court, Cincinnati
• Decided: May 15, 1859
• Docket: No. 7,041
• Status: Published

Opinion

Storer, J.

The question submitted to the court is this: Whether the inquisition taken by the sheriff was filed with the clerk, within the time required by section 433 of the code. It appears the advertisement for the land, was published before the inquisition was filed, and we have held in general term, that no publication can be legally made, until the sheriff has deposited a copy of the valuation in the clerk’s office. The language of the section is: “The officer receiving such return shall forthwith deposit a copy thereof with the clerk of the court from which the writ issued, and immediately advertise and sell such real estate, agreeably to the provisions of this title.”

We shall adhere to the construction we then gave to the statute, having found no reason since it was announced, why it should be changed, or in any particular modified.

After the confirmation of a sale, though such a defect would not impair the purchaser’s title, yet before we have ordered a deed to be made, we may very well require all the proceedings connected with the process, the levy, the appraisement, the publication, and the sale, to be in harmony with the code. On examination of the sheriff’s return, we find the purchaser made no deposit of the purchase money on the day of sale, and has refused to comply with the terms of sale.

The officer may well refuse to return a sale, if the purchaser does not comply with its conditions, or he may reject the bid tendered, though it may have been temporarily accepted, and offer the property again for sale. If, however, he return the facts, it is the duty of the court to interfere, and protect all the parties interested, as well the sheriff as the judgment creditor.

We are not bound to confirm a sale-under such circumstances, unless the creditor consents, for it can not be the intention of the law, he shall be postponed until an action shall be brought by the sheriff for the purchase money. He has the right to subject the property levied on to the payment of his debt, within the period prescribed by the code; he should not, by the refusal of the purchaser to pay, be delayed in the collection of his claim.

We ought not to sanction such a course, but in all eases require the purchase money to be in court, in the custody of our officers, before we will order the title to be changed. We can not until then make a distribution among lien-holders, or marshal the rights of the parties.

The sheriff' has leave to amend his return, but.as we are satisfied the sale should be set aside, for the reason first indicated, it may not be necessary for him to do so.

Sale set aside.