EXECUTION SALES.

[Montgomery Circuit Court,

December Term, 1888.]

Stewart, Shauck and Shearer, JJ.

#### *SAMUEL D. BEAR v. FRED K. BOOKMILLER ET AL.

1. Supersedeas Bond to Stay Sale of Real Estate Must Conform to Statute. -

A proceeding to reverse a judgment directing the sale of real property, will not operate, to stay the execution of such judgment, where the written undertaking required by sec. 6718, Rev. Stat., is conditioned only as prescribed in the first sub-division of said sec-, tion. In such case the undertaking must conform to the third sub-division.

2. Sale Must be Confirmed Unless Other Reasons to Set it Aside Exist.

Where a proceeding to reverse such judgment is pending, and an undertaking, in conformity with said sub-division one, merely, has been given, and the court has found the proceedings of the officer making the sale to be regular, and no reason is assigned, or exists, for setting aside said sale, except the pendency of such proceedings in error and the filing of such undertaking, said sale should be confirmed, and the vacation thereof is error.

I. Court has Discretion to Vacate Sale.

While the language of sec. 5398, Rev. Stat., directing the court to confirm the sale of real estate on execution, if found regular, it does, not follow that the court is without discretion in a proper case, to vacate the sale.

Error to Court of Common Pleas of Montgomery county.

At the June term of this court in the year 1887, upon appeal of the original action, it was found among other things, that the plaintiff, Samuel D. Bear, held a judgment against the defendant .Bookmiller, upon which there was due $15.0100 with interest and costs; that said defendant had no property subject to levy for the satisfaction of said judgment; but that at the time of its rendition he was the owner of certain specified real estate, situate in the city of Dayton, which he had since conveyed to his co-defendant, Baldwin.

Upon these findings a decree was entered for the sale of said premises, as upon execution, to satisfy said judgment, and the cause remanded to the common-pleas for execution.

Subsequently, on the 30th day of June, 1887, the defendants, Bookmiller and Baldwin, with a view to a stay of execution, pending proceedings in error, filed a written undertaking, conditioned as required by the first subdivision of sec. 6718, Rev. Stat.; and on the 27th day of July served plaintiffs with copies of the printed record, and on the 30th day of August with copies of their printed brief; but no petition in error was filed in the Supreme Court until September 1, 1887.

On the 24th day of August, 1887, the plaintiff, disregarding said proceedings of the defendants, procured an order of sale to issue upon said decree, for the sale of said real estate; and such proceedings were had thereunder that said premises were sold on the 24th day of September to one John Snyder; of which proceedings and sale due return was made by the sheriff on the first day of October, 1887.

Before said return was made, to-wit: On the 27th day of September, the defendants filed a motion to vacate and set aside said sale, reciting the facts occurring subsequently to said decree, as one ground, and alleging as a second ground that they were ready to pay the judgment.

On the fifth day of October, 1887, said defendants filed a second undertaking for stay of execution, containing the same condition as was set forth in the first.

*278Afterwards, on the 21st day of October, said plaintiff and Snyder, the purchaser, filed a motion for the confirmation of said sale; and on the 16th day of December, following, the defendants' filed a motion praying the court, to suspend all action concerning the sale until the proceedings in error were determined in the supreme court.

On the hearing of these motions the court below found the proceedings of the sheriff in making said sale to be regular and according to law; adjudged that said defendants pay all costs and expenses of said sale, sustained the motion to set aside, and overruled the motion to confirm, said sale, as well as said motion to. suspend further proceedings pending the proceedings in error in the supreme court; to which rulings exceptions were duly noted by the respective parties.

The present proceeding is prosecuted to reverse the judgment of the court below, overruling the motion to confirm, and sustaining the motion to set aside, said sale.

*

 The judgment in this case was affirmed by the supreme court, without report, April 1, 1890. It is cited by the superior court in Ward v. Ward, 4 Ohio Dec., 118.

Shearer, J.

It is claimed by the plaintiff in error (1) that the court below having found the sale had been made, in all respects, in conformity to law, had no election but to confirm the same; and (2) if this were not so, that the undertakings given by the defendant in error, were not in conformity with the statute in such case made and provided, and therefore did not operate to stay the execution of the judgment.

1. The first claim is not tenable. Section 5398 Rev. Stat., requires the court, “if upon the return of any writ of execution, for the satisfaction of which lands' and tenements have been' sold, it be found * * * on careful examination of the proceedings of the officer, that the sale has been made in all respects in conformity to the provisions of this title,” to direct “the clerk to make an entry on the journal that the court is satisfied of the legality of such sale, and that the officer make to the purchaser a deed for the lands and tenements.” While this language is mandatory, it does not follow that, upon such finding, the court is without discretion,' in a proper case, to vacate the sale. Craig’s Adm’r v. Fox, 16 O., 564; Ins. Co. v. Goodin, 10 O. S. 566; Reed v. Radigan, 42 O. S., 292.

In Reed v. Radigan, *supra,*in discussing such a construction of the statute and the-powers of the court, Owen, J., says it is “not only against the common understanding of the' profession, and at variance with the uniform practice of the-courts, but we believe it is, both upon principle and authority, untenable.”

In Bassett v. Daniels, 10 O. S., 617, judgment was rendered against the defendants, and an order of sale of the real estate allowed. Notice of intention to appeal was entered. Sale was made by the sheriff in pursuance of the order, and his proceedings found to be, regular. After the report of the sale, the appeal was perfected. At the ensuing term the purchaser moved for confirmation, which was refused; and, on error, Held: “* * * a sale of real estate made before an appeal bond is filed, will not be confirmed after the appeal is perfected.”

It is well settled that a court may vacate a sale for causes *dehors*the proceedings of the officer making the same. Reed v. Radigan, *supra.*

2. Were the undertakings sufficient? The first having been filed before proceedings in error in the supreme court were commenced, was ineffectual to suspend execution, whether it conformed to the requirements of the statute or not.

But the second undertaking was filed after the petition in error was pending in the supreme court; and if it was in accordance with the provisions of the statute in that behalf, execution of the judgment was thereby stayed.

The original action, as we have seen, was to enforce a judgment, by the sale of real estate. The character and condition of the undertaking to be given in such case is prescribed in subdivision three of sec. 6718, Rev. St.at., which reads as follows: “3. When it” (the judgment or final order) “directs the sale * * * of real property, the undertaking shall be in such sum as may be prescribed by a *279court of record, or a judge thereof, to the effect that during the possession of such-property by the plaintiff in error, he will not commit, nor suffer to be committed, any waste thereon, and that if the judgment be affirmed he will pay. the value ol the use and occupation of the property * * * and when the judgment is for. the sale of mortgaged premises and the payment of a deficiency arising from the sale, the undertalcing must also provide for the payment of such deficiency.” The undertaking given conformed substantially to the provisions of subdivision one oi said section; but in nowise in accordance with subdivision three. It was not in a sum “prescribed by a court of record, or a judge thereof;” nor did it provide against waste or for the value of the use and occupation of the property. This is necessary where the judgment directs the sale of real property. Ackerman v. Lazarus, 34 O. S., 671.

Craighead & Craighead, for plaintiff in error.

C. H. Baldwin, *tontra.*

It follows; — the proceedings of the sheriff under the order having been found to be regular, and no such undertaking as was required by law having been given —that there was no ground for vacating said sale, and such order was erroneous.

Judgment reversed, and cause remanded to the common pleas, with instruction to overrule said motion to set aside, and to sustain the motion to confirm, said sale.