AMERCEMENT.

[Franklin Circuit Court.

January Term, 1893.]

Shearer, Stewart and Shauclc, JJ.

#### ABRAM SHARP v. JAMES ROSS (SHERIFF.)

1. NBGi/ECT to return Order of Sai.e is Ground for

A sheriff is liable to amercement for neglect to return an order of sale to the proper court, though the making of such return be not ’demanded by the plaintiff.

3. Accepting Debtor’s Bid without Cash is Ground for

Sucih officer is liable to amercement for failure to execute an order to sell mortgaged premises for cash if he accepts the bid of the mortgagor and closes the sale to him without payment of the price.

Error to the Court of Common Pleas of Franklin County.

April 26, 1892, the plaintiff filed in the court of common pleas a motion to amerce the defendant for neglecting to sell real estate pursuant to an alias order of sale placed in his hands, and for neglecting to return said order and to make report of his proceedings thereunder. Upon the hearing of the motion, a bill of exceptions was taken, which embodies all the evidence offered. From the bill the following facts appear:

At the April term, 1890, of said court, Sharp recovered a judgment against George Ginder et al. in a foreclosure suit, and pursuant thereto an,order of sale was placed in the hands of the sheriff, which was thereafter returned unexecuted “by order of the plaintiff’s attorney.” Thereafter an alias order of sale was issued to said sheriff, commanding him to expose the mortgaged premises to sale, 'pursuant to the statute regulating sales on execution, etc. Under this order the sheriff, having taken all the preliminary steps required, offered the property at public auction. At that sale, Ginder, who was the owner of the premises and one of the mortgagors, was one of the competing bidders, and his final bid being the highest, the premises were struck off to him. Ginder did not then, nor at any other time, pay any money to the sheriff upon said sale, but promised to pay the full amount at an early day, representing to the sheriff that he was about to procure a loan of money which would place him in a position to make the payment. The sheriff, James Ross, had not made return of this order at the time of the hearing in the common pleas, though more than sixty days had elapsed before the motion was filed. This failure, as the sheriff testifies, was in consequence of "Ginder’s failure to pay the purchase price. It has been customary in the county for several years to close such sales without the payment of the purchase money by the highest bidder, and to await his convenience beyond the sixty days prescribed for the return of the writ. The return of this writ was not demanded by the plaintiff or his counsel, nor did either of them direct the omission of any duty which the statute imposes upon the sheriff.

The plaintiff having bid $795.00 for the property, demanded of the sheriff that he should not accept Ginder’s bid of $796.00, without the payment of at least $200.00 in cash. This .demand the sheriff did not regard, and accepted the latter bid without the payment of any money, saying to the plaintiff that he could amerce Ginder, if he did not pay. The court of common pleas overruled the motion to amerce, which is here assigned as error.

SHAUCK, J.

It was the duty of the sheriff, under the order, to sell the premises for cash, there being no order or direction to the contrary. Sec. 5381, Rev. Stat.

It was also his duty to return the writ within sixty d'ays from the date thereof. Sec. .5418, Rev. Stat.

His manifest failure to perform these duties leaves the single question whether such failure subjects him to amercement under the 'circumstances shown by the evidence. The relevant provisions of sec. 5594, Rev. Stat. are:

> “If an execution or order of sale, directed to an officer, come to his hand to be executed, and he neglect or refuse to execute it; or if he neglect or refuse to sell property of any kind which, by any writ or order, he is directed to sell; * * * or neglect to return to the proper court an execution or order of sale to him directed, on or before the return day thereof; * * * such officer shall, on motion in court, and notice thereof in writing, as provided in the next section, be amerced in the amount of such judgment, including costs, with ten per cent, thereon, to or for the use of such plaintiff * * ■ *.”

This statute is penal; and authoritative decisions, as well as a familiar principle applicable to such statutes, require that it be.strictly construed to the end *661that the officer shall be amerced in such cases only as are clearly within the provisions and purposes of the statute. That, .however, is the only legitimate end of the rule of strict construction. It should not be made a pretext for the judicial annulment of statutes.

F. W. Wood and Walter B. Page, for plaintiff,

*J.*T. Holmes and J. S. Friesner, contra.

It .is contended that the sheriff’s failure"to return the writ is excusable, because the plaintiff failed to demand of him the performance of that duty. No other excuse is offered. Plainly, the statutory provisions referred to impose upon him the duty of making the return.without demand. The terms of the statute suggest no condition to the duty, and a previous demand would not be consistent with the nature of the duty for whose performance the entire term of .sixty days is allowed. This view of the officer’s absolute duty to make the return is, by apt language, carried into the section .which provides for his amercement. The provision is that “if he neglect to return to the proper court,” etc., he shall be amerced. Neglect, in a statute of this character, means the failure to perform a duty which it is the officer’s duty to perform without demand. Kimball v. Rowland, 6 Gray, 224. That the word is used in its proper sense in the provision under consideration is shown by the discriminating use, in the same section, of other words with reference to other' duties as to which a demand is necessary; to place the officer in default.

Counsel for the plaintiff in error also contend that the sheriff failed to execute the order of sale, because Ginder could not purchase his own property. Unquestionably, the mortgagor’s right to redeem continues not only until the sale, but until confirmation thereof, and if Ginder, as purchaser, had paid enough money to satisfy the judgment, the plaintiff would have no substantial cause for complaint.

In Murfree on Sheriffs, sec. 1006, it is said that a defendant may purchase at a judicial sale of his own property. In support of this proposition, the author cites Neilson v. Neilson, 5 Barb., 565, and Kilgo v. Castleberry, 38 Ga., 512. Neither case supports the text, the point decided in both being that one of two execution debtors may purchase at a judicial sale of the property of the other.

Confining our view to the case before us, it seems clear that the sheriff failed to execute the writ. It is held in well considered cases that where a sheriff, in the execution of an order to sell for cash, closes the sale to a bidder who does not pay the price, he makes himself responsible for thé bid. Robinson v. Brennan, 90 N. Y., 208; Disston v. Strauk, 42 N. J. L., 546. Although the plaintiff in such case may re-sell the property as that of the purchaser, and charge him with any deficiency there may be in the price at such re-sale, or proceed against him directly for his failure to -pay the amount of his bid, the sheriff is still liable for his failure to perform the duties enjoined upon him by the" writ. It is very evident that in this case, the right of the plaintiff to proceed against the bidder would have been of no value, and the case well illustrates -the consequences that would follow the rule adopted in this case by the court below. If the course pursued by the sheriff should be held to have been an execution of the writ, the same -course would answer his duty in all other orders that might be issued. It ' would result that by selling the property to the defendant without payment of his bid the execution of the orders would be defeated.

The judgment will be reversed; and, as there is no conflict in the evidence upon any material question, the motion will be sustained and the cause remanded to the court of common pleas for execution.