#### McGuire v. Ely, et al.

Certiorari — sale by sheriff — receipt for money — order of confirmation — swearing 'apptaisers— reversal of judgment does not vacate sale — restitution upon ajudgmentin error.

The sheriff is authorized to swear value as'upon execution, and if he certify the fact after he goes out of office that will not show that he swore them after his office expired.

If the purchaser at sheriff’s sale get the plaintiff’s receipt and the sheriff return the money paid to the plaintiff, that is the same as if the money were paid to the sheriff.

If a sale is made, but before the order of confirmation and deed the judgment on which the execution issued is reversed, the purchaser holds the land, and the plaintiff in the execution must restore the money with interest.

If the judgment debtor chose to omit bail‘and to sue out a supersedeas on his writ of error, it is his own choice to have the proceedings on the judgment progress, and it does not lie in his mouth to complain of hardship in depriving him of his land on an erroneous judgment.

Certiorari. Ely had judgment at law against McGuire on a mortgage, upon which, execution was levied on the mortgaged premises, and they were sold by the plaintiff to Hawkins. Hawkins having dealings with Ely who owed him money, exchanged receipts with him, giving him a receipt for the amount of his purchase, on account, and taking one from Ely for the same amount as so much money in full of the purchase, which he gave to the sheriff. After the sale, the sheriff making it went out of office, and his successor was inducted. The proceedings were submitted to the court, found regular confirmed, and an order made that the new sheriff make a deed to the purchaser. At the time of the sale by the sheriff a writ of error was pending on the judgment upon the mortgage, but no bail was given or supersedeas sued out. After the sale, but before the order of confirmation, the judgment was reversed by this court. This writ is brought to reverse the order of the Court of Common Pleas, confirming the sale by the sheriff, and for a deed. The following errors were assigned upon the proceedings:

1. That the appraisers were sworn by the late sheriff who had no authority to administer oaths.

2. That it appears the purchase money was not paid.

*5213. That the judgment on which the sale was made, was reversed before the order of confirmation.

The case was submitted on briefs.

Br the Court.

The first objection mistakes the facts shown on the record. The law authorizes the officer levying the execution, to swear the valuers: (29 *O. L.*103.) The sheriff in fact swore them while in office, but not making his return until his official term closed, he signed the certificate, *late*sheriff. From this alone it is sought to be inferred, that he administered the oath after he went out of office. We think it appears otherwise.

The second error is a question with the officer. He has returned, in effect, that the money was paid to the plaintiff in the judgment. The defendant, the debtor, having obtained credit for the proceeds of the sale, cannot be admitted to object that his creditor did not realize it. The creditor must take care of himself. The receipt for the money has the same legal effect, as if the money had been paid to the sheriff, and by him to the plaintiff, and by the plaintiff to the pui-chaser to pay the debt due him. Why pass the money round, when the receipt answered every purpose?

The third objection *to these*proceedings is .the one upon which the main reliance is placed. The statute (29 *O. L.*104) requires the court to examine the proceedings of the sheriff touching the sale of lands, and if found to conform to the statute, to enter it of record, and order a deed to the purchaser. The law is imperative upon the court, leaving it no discretion as to making the order, if the proceedings conform to its provisions. If this were not so, however, the plaintiff in error would not be benefited. The 22d section of the judgment and execution law (29 *O. L.*107) provides that in case a judgment, on which lands have been *sold,*shall *thereafter*be reversed, such reversal shall not *affect*the *title*of the purchaser, but restitution shall be made of the money for which the land sold, *with interest from the day of sale.*If the sheriff’s proceedings are regular, the purchaser of him acquires a right at the sale, though the evidence of his title may not be given to him until subsequently. This right cannot be taken from him by any after act of the parties to the suit, over which the purchaser has no control. The clause of the law, fixing the date when interest commences in case the money is restored, shows clearly when the right accrued in the estimation of the legislature. It dates from the actual sale, and not the time the court find it regular as the plaintiff in error supposes. The hardship complained of, which divests the plaintiff in error of his plantation, under an erroneous judgment, is not perceptible, if it *522•were proper for us to examine into and pass upon that allegation. The statute secures to a party suing out a writ of error, the right to a supercedeas of the judgment sought to be reversed, if he will give security in the clerk’s office; but expressly declares the writ of error *shall not operate as a*supercedeas, *unless such security he given:*(29 *O. L.*77.) The plaintiff in error, was chargeable with a knowledge of this law, but chose, instead of following its provisions, to pursue his rights through another channel. It does not become him now to complain of the hardship which has resulted from his own choice. He must abide the consequences which legitimately flow from the course he chose to pursue, and should have philosophy enough not to murmur at them.

The orders are affirmed with costs.