Washington County IL Archives Court.....Curtis , V. Doe 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 9, 2009, 12:39 am

Source: Il Court Reports, 1819-1830
Written: 1825

December Term 1825

Henry Curtis, Plaintiff in error, v. John Doe, ex. dem. Daniel Swearingen, 
Defendant in Error.

ERROR TO WASHINGTON.

A sheriff's deed which does not state the land was appraised, and unsupported 
by proof that it was appraised, is insufficient to entitle the lessor, 
claiming under it, to recover in an action of ejectment.

Opinion of the Court by Justice Lockwood. This was an action of ejectment, 
brought to recover the undivided moiety of a tract of land in the county of 
Washington. A number of errors have been assigned, but from the view we have 
taken of the case, it will be unnecessary to decide more than the following 
question:—Was the sheriff's deed to the lessor sufficient to convey Ryan's 
interest in the premises? The objection taken to the deed is, that it does not 
appear from the deed, (and the plaintiff below did not prove by parol,) that 
the premises were appraised, and sold for two-thirds of the valuation. This 
question is one of great importance to the interests of the community, and 
deserves the most serious and attentive consideration of the court. Its 
decision will form a highly important rule in the transfer of real estate, 
that may affect the rights of a great number of individuals. The transfer of 
real property by a judicial side, is unknown to the common law, but is 
authorized by the statutes of this state.

The legislature, in subjecting real estate to sale on execution, have clearly 
the right to prescribe the terms on which such sale may be made, and any 
material departure from the rules prescribed by the statute, will render the 
sale void. What, then, are the rules prescribed by our statutes in relation to 
sales on execution?

It must be confessed that the court find some difficulty in reconciling the 
2d, 8th, and 22d sections of the act entitled "An act subjecting real estate 
to execution for debt, and for other purposes," passed 22d March, 1819. But 
whatever uncertainty might grow out of the attempt to reconcile the 
conflicting provisions of these sections, yet the court have no doubt that the 
legislature intended, by the 22d section, to require that all real estate 
should be valued before sale. This section is as follows:

"That all real estate that shall be ordered to be sold under the provisions of 
this act, shall be valued by three disinterested freeholders of the county in 
which the same may be situated, who shall be appointed by the sheriff or other 
officer, and sworn to take into consideration the true value of such estate in 
cash, and the said sheriff or other officer shall then proceed to sell the 
same: provided, that the said land, or freehold, shall bring the amount of its 
valuation as aforesaid, or at least two-thirds thereof; but in case the said 
land or freehold shall not bring the amount of its valuation, or two-thirds 
thereof, then the said sheriff or other officer shall continue the sale until 
the same shall have been offered on three different days, allowing the space 
of twenty days between each day of sale, giving due notice thereof as before 
directed, unless the person in whose favor the execution issued, shall agree 
to take the same at the valuation made as aforesaid."*

This statute was amended by an act passed the 15th February, 1821, which seems 
to have escaped the notice of the counsel on both sides. By the third and 
fourth sections or the amended act, the legislature assume the fact that real 
estate can not be sold on execution, unless it will bring two-thirds of its 
valuation. The third section is intended to authorize lands that have been 
already valued and not sold for want of bidders, at two-thirds of the 
valuation, to be sold for one-half of the valuation.

The fourth section of the amended act is:—"That when any real estate shall 
hereafter be levied upon, by virtue of any execution hereafter to be issued, 
and shall have been twice offered for sale under the provisions of the act to 
which this is an amendment, and has not brought the amount of its valuation, 
or two-thirds thereof, upon the third, or any subsequent offering, the 
sheriff, or other officer, shall proceed to sell it to the highest bidder for 
what it will bring in ready money, having first given fifteen days' notice as 
aforesaid. My conclusion is, that the sheriff was bound to proceed on the 
execution mentioned in this case, according to the directions of the 22d 
section of the original act, as modified by the fourth section of the amending 
act. From which it will result, that the sheriff's duty was to have had the 
premises valued by three disinterested freeholders, on oath, and advertised 
for twenty days, when, if two-thirds was not bid, he should again have 
advertised for twenty days, and then if two-thirds was not bid, he could, 
according to the above recited fourth section, sell the premises for what they 
would bring in ready money, having first given fifteen days' notice of the 
sale. Can the court presume that the sheriff complied with these express 
provisions of the law? I think not. Would not every lawyer be startled at the 
proposition, whether the court would not presume in favor of a sheriff's deed, 
that the sheriff had an execution? And that the execution was based on a 
judgment? Yet these presumptions appear as reasonable as the presumption that 
the sheriff has obeyed the mandates of the statute, without showing the fact. 
Every agent, whether public or private, must act within the powers delegated 
to him, and must show that in all essential particulars he has not varied from 
them. If a party is to be deprived of his property without his consent, the 
law that authorizes him to be dispossessed must be obeyed, and he has a right 
to call for proof that he has not been illegally divested of his estate. The 
argument that good policy requires that public sales shall be supported, 
whether the provisions of the statute have been substantially complied with or 
not, does not appear to be entitled to much weight.

Whether the land has been appraised or not, (and it is to this point that we 
confine our attention,) can be very readily ascertained, by the bidders 
calling for the valuation.(1) We have hitherto considered this case with 
reference to our statutes, and upon general principles. We are, however, not 
without authorities on the very point. In the case of Patrick v. Gideon 
Oosterout, 1 Ohio reports, 27, two questions were submitted to the court; 1. 
Was it necessary under a sheriff's deed to exhibit the appraisement? 2. Was 
the appraisement sufficient? The objection to the appraisement was, that it 
did not appear to have been made on oath. The court, consisting of Judges 
McLean and Burnet, held that a sale without an appraisement was void, and 
rejected the sheriff's deed, because it did not appear that the appraisement 
was on oath.

They refused to presume that the oath had been taken. It has also been decided 
in Connecticut, (1 Day's Repts. 109,) that in order to make out a title to 
land, by the levy of an execution, it must be shown that the appraisers were 
disinterested freeholders, and that they were sworn according to law.

In the case of Parker v. Rule's lessee, 9 Cranch, 64, the supreme court of the 
United States decided, that, under the land tax act of the 14th July, 1798, c. 
92, before the collector could sell the land of an unknown proprietor for non 
payment of taxes, it was necessary that he should advertise the copy of the 
lists of lands, &c., and the statement of the amount due for the tax, and the 
notification to pay, for sixty days, in four Gazettes of the state, if there 
were so many printed therein. Again, in the case of Stead's executor v. 
Course, 4 Cranch, 403, and which arose under the tax laws of Georgia, the 
supreme court decided that an officer selling land for taxes, must act in 
conformity with the law from which his power is derived, and the purchaser is 
bound to inquire whether he has so acted. In the case of Williams v. Peyton, 4 
Wheaton, 17, the same court held, that in the case of a naked power, not 
coupled with an interest, the law requires that every pre-requisite to the 
exercise of that power should precede it. That the party who sets up a title, 
must furnish the evidence necessary to support it. If the validity of a deed 
depends on an act in pais, the party claiming under it is as much bound to 
prove the performance of the act as he would be bound to prove any matter of 
record, on which the validity of the deed might depend. And in this last case 
the court decided that the collector's deed was not prima facie evidence.

The court have examined the cases decided in the Kentucky courts, referred to 
in plaintiff's argument, but think they have but little application to this 
case. One of the cases was a sale of personal property, which for obvious 
reasons, is governed by different rules from those of real property. Another 
of the cases referred to, was the sale of land for taxes. The facts of the 
case are, however, so imperfectly stated, that it is impossible to extract 
from the case any rule applicable to the decision of this case.

The last case cited, was a case of the sale of land on execution, and the 
court are perfectly willing to accede that the case was rightly decided under 
the Kentucky statute.

This court can not, however, accede to the argument of the court, as to what 
true policy dictates on this subject. We cannot regard the question as 
altogether a question of policy, but as more a question of positive law. In 
relation to the cases cited from New York, the court are of opinion that they 
can have no application here, because, in New York, they have a positive 
statute, making sheriffs sales valid, however palpable may be his departure 
from its provisions. The court feel themselves constrained to say, that the 
sheriff's deed, unsupported by any proof that the land had been valued, was 
insufficient to entitle the lessor to recover. The judgment must be reversed 
with costs. (a)

Judgment reversed.

McRoberts, for plaintiff in error. 
T. Reynolds, for defendant in error. 

----------------
*Laws of 1819, p. 183.

(1) This is now changed by statute.

(a) The party who sets up a conveyance, must furnish the necessary evidence to 
support it. If the validity of a deed depends on an act in pais, the party 
claiming under it is as much bound to prove the performance of the set, as he 
would be bound to prove any matter of record on which the validity might 
depend. Williams et al. v. Peyton's lessee, 4 Wheat., 77.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831 

By Sidney Breese, Counsellor at Law
Second Edition, with Additional Notes, By Edwin Beecher

Chicago: Callaghan & Company, 1877.

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