Samuel and Joseph G. Nesbitt vs. William Dallam, 7 G. & J. 494

Dorsey, Judge, delivered the opinion of the court. The appellee’s motion to this court, to c£ set aside and strike from the record the paper contained therein, and purporting to be a bill of exceptions,” if sustained, would exclude from our consideration many of the questions presented in the course of the argument; and, therefore, claims priority in the order, in which the various branches of this case suggest themselves for our determination. In support of this motion, three reasons have been assigned.

First, ££ because the said paper was not drawn up, or reduced to writing as is apparent on its face, until several months after the judgment of the court was rendered.” Secondly, “ because the evidence given on a motion to set aside a sheriff’s return, cannot form the subject of a bill of exceptions.” And Thirdly, ££ because the said motion to set aside the sheriff ’s sale in said record mentioned, was tried upon oral proof, which proof could not after the motion was decided, be reduced to writing and placed upon the record without the assent of the appellee, which was not had, as is apparent from said bill of exceptions.” . ££ In weighing the sufficiency of the first reason, we are necessarily brought to the examination of the facts and circumstances, attending the taking and • filing this alleged bill of exceptions.

The record shews, that at October term, 1833, to which the sheriff made return of the venditiom exponas, as soon as the county court gave judgment, overruling the motion to set aside the sheriff’s sale and return, the appellants excepted thereto, and the next day thereafter, presented a statement of the facts in evidence at the trial of their motion, or in other words their bill of exceptions, and requested that it might be signed and sealed by the court.

The court not deeming the statement of facts entirely satisfactory, and the appellee’s counsel, objecting to the making of any statement of the evidence in the case, alleging that it was tried on oral testimony, and that they would not consent to its reduction to .writing, from recollection after the case was tried, did not then adjust the bill of exceptions ; and before this operation was performed, an adjournment for the term took place.

Whether the court held the case under a curia, with a view to prepare a bill of exceptions, more fully and impartially detailing the facts and circumstances before them, or for the purpose of forming a more mature and correct opinion of the weight due to the objection urged by the appellee, or whether the adjournment of the court occured, so immediately after the agitation of the question in respect to the bill of exceptions, that there was no opportunity given to the court for its adjustment, the record furnishes us no means of ascertaining.

But judicial courtesy forbids us to assume, that the delay was not the result of some reasonable cause. To forfeit the rights of the appellants for this act of the court, for the redress or prevention of which, as far as is distinctly disclosed by the record, there wrere no means in their power, would seem rather too rigorous a measure of justice.

At the instance of the appellants’ counsel at the succeeding term, the court aided by the recollection of the counsel on both sides, prepared and signed the bill of exceptions ; which according to the clerical formula, was inserted in the record as filed at October term, 1833. Without doing great injustice to the appellants, we do not feel ourselves at liberty for the first reason assigned therefor, to expunge from the record this bill of exceptions. Is the second reason assigned for so doing, of more imperative obligation ?

We think not, there is nothing in the words of the Statute of Westminster, so to restrict its operation. At common law, where the plaintiff or defendant, “ alleged any thing ore tenus, which was overruled by the judge, this could not be assigned for error, not appearing within the record.” “ And so the party grieved was without remedy;” therefore the Statute of Westminster 2, provides that when one is impleaded, that is sued, or as was intended, is a party to a suit, he should be allowed his bill of exceptions.

It does not either in its letter or spirit, confine this privilege to trials before a jury, and although the necessity for its use except iu such trials, is of rare occurence; yet cases do sometimes occur, and as such we regard the present, where the evil which the statute was designed to remedy, is as strikingly exemplified, the necessity of its application as obviously demonstrated, as it could be on a jury trial. As authorities shewing that this restricted operation of the statute has not been adopted in courts of law, see Briscoe et al vs. Ward, 1 Harr, and Johns. 165. Ford vs.

Potts and others, 1 Hals’d Rep. 388, We do not therefore regard the second reason assigned, as in anywise tending to support the motion of the appellee. Nor do we esteem the third reason as sufficient for that purpose.

There is no legislative enactment nor rule of Cecil county court, as far as we can learn from the record, which prohibits the use of oral testimony in open court, on a motion pending before it to quash an execution, or set aside a sale made under it, or which requires that such testimony when received, if it be made the basis of a bill of exceptions, should be reduced to writing before the court’s judgment upon the motion is pronounced, and we do not feel ourselves inclined, from the special circumstances of this case, to adopt a new rule for its government.

The oral examination of witnesses by the county court, was perhaps the best mode which could be adopted to elicit the truth, and enable them to form a correct judgment on the question before them. At all events, whether they chose to act on the case on oral testimony before them, committed to writing or not committed to writing, or upon depositions previously taken under the authority of the court, is a matter resting exclusively in their discretion, and in no aspect of the case, can deprive either party of the right of having the opinion of the court reviewed, on a bill of exceptions.

In deciding upon the motion, the court must have weighed and considered all the testimony disclosed on the trial, and being notified at the moment their opinion was pronounced, when all the facts where fresh in their recollection, that the appellants asked leave to except, and that the court would sign a bill of ex-eeptions, we cannot do otherwise than presume that the facts upon which their opinion was founded, have been accurately embodied in the bill of exceptions ; and this presumption is strongly fortified by the fact, that in preparing it they were aided by the counsel on both sides.

The numerous dicta and authorities referred to as shewing, that the material parts of a bill of exceptions must be prepared by the party excepting, before the verdict is rendered or judgment of the court given, have no application to the case at bar. Until the opinion of the court was pronounced, there could be no exception; there was nothing to be excepted to. It is that alone which intimates to either party, the necessity of preparing a bill of exceptions. The third reason assigned cannot then avail the appellee for the purpose for which it was offered. See Camp vs. Tompkins, 9 Conn. Rep. 545.

Conceding the right of the appellants to have their case reviewed before this tribunal, it is insisted that the judgment of the county court must be affirmed, because the reasons assigned in support of the motion to set aside the sheriff’s sale, depending on matters of fact, not appearing at the time it was made in the record or proceedings of the county court, they could not be made the basis of such a motion, unless verified by affidavit. This position we think undeniable, had it been assumed by the appellee at the appropriate stage of the litigation before the county court.

If objected to at the trial there, all evidence offered to prove such facts must have been rejected.

But if the testimony be permitted to be given without opposition as to its admissibility, and after the judgment of the court is pronounced upon the whole case as presented by the proof, it be brought before an appellate tribunal upon a bill of exceptions, which shews that no question on the admissibility of the evidence was raised in the court below, it may well be doubted, whether on the trial of the appeal, the court would listen to an objection resting on a mere defect in form, when the proceedings in the cause so strongly justify the presumption of its waiver, by the party for whose benefit it was required, and who was competent to waive it.

An answer in Chancery must be verified by affidavit, and if this be omitted, the complainant may treat it as a nullity, and cause it to be taken off the file. If however, without raising the question of its invalidity, he proceeds in the cause as if a regular answer were put in, he certainly could not avail himself of such an objection in an appellate court; but is presumed to have waived the informality. As an authority on the point now before us, see Finlay, et al, vs. Hinde and wife, 1 Peters, 241.

But suppose, that independently of Maryland, legislation upon the subject, this defect would be fatal before an appellate jurisdiction. It cannot for a moment be relied on, since the passage of the act of 1825, ch. 117, sec. 1, which provides, that in no case, shall the appellant or plaintiff in error, or the appellee or defendant in error, be permitted to urge or insist upon any point or question, which shall not appear by the record, to have been raised or made in the county court.

So far from this point appearing from the record, to have been brought before the county court; it is manifest from their certificates of the proceedings before them, that no such •question was presented for their determination. It cannot therefore be taken advantage of, before this tribunal. We must deal with this judgment then, as if all the facts stated in the bill of exceptions were legitimately before us.

The sale must be set aside, it is urged, because as is alleged due and legal notice thereof, was not given in the mode prescribed by the act of 1816, ch. 129, sec. 1, viz. “by advertisement set up at least twenty days before tbe day of sale, at the court-house door of the county, and other public places in the county, where such sale may be made.” In the case before us, the advertisement of the sale was set up at no public places in the county, except the court-house door, the post-office and two taverns in the town of EUcton, notwithstanding the lot of ground sold, lay eighteen miles off, in the town of Port Deposit; “ a place of business and commerce.” Although, perhaps according to the terms of the act of Assembly, the court on that ground only, might not feel themselves at liberty, where the advertisement was set up as in the present case, to set aside a sheriff’s sale, yet it is a circumstance that would have great wmight in inclining them to do so, where the property had been sold greatly below its value.

It is the duty of the sheriff in making a judicial sale, to endeavour to obtain the best price in his power for the property to be sold ; and in the exercise of a sound judgment and discretion upon the subject, he should cause advertisements to be set up at such public places in the county, as he may reasonably believe would be conducive to that end; amongst which, in the present case, in the absence of all proof to the contrary, would be public places in the town of Port Deposit, and its vicinity.

It has been contended, that the sale should be vacated, because the property was sold at Elkton, and not where it lies at the town of Port Deposit. This circumstance we do not of itself regard as a sufficient ground for setting aside the sale, but if it be attended with any sacrifice of the property, it would be conclusive with the court in setting it aside. Although the time and place of sale are matters resting in the discretion of the sheriff, when his acts on these grounds are contested, he must appear in their selection, to have conducted himself with ordinary prudence and judgment.

In the absence of all proof to the contrary, we should lend a willing ear to the suggestion, that the sheriff did not so demean himself, when he sold in Ellcton, without having first made an effort to sell the property in the town of Port Deposit, or its vicinity. This want of judgment or dereliction of duty in the sheriff, if followed by a sale at a very reduced price, would be a sufficient foundation for the court to vacate the sale.

Let us not be understood, as intimating an opinion, that in every county in the State, where real property is levied on, at a considerable distance from the county town, that it is incumbent on the sheriff, first to attempt a sale upon, or in the neighbourhood of the premises, In many of the counties it is customary for the inhabitants on certain days in the week, called public days, to assemble from every part of their counties at their respective county towns. In such counties, it would be judicious in the sheriffs, to endeavour to make their sales of land on those days, and at those places.

There is no proof in this case, of such an usage prevailing in Cecil county. We can yield no sanction to the argument which insists, that all sales of real property must be made upon the premises. The next question we are called to decide is, whether a sale in mass made by a sheriff, of divers lots of ground, situated in the same town, but separate and distinct from each other, ought not, on a motion for that purpose,-to be set aside. Such a sale, on a motion to vacate it, we regard as primei facie void; and he, who seeks to sustain it, must shew its justice and expediency.

As authorities for this doctrine and shewing the reasons on which it is founded, see Woods vs. Monell, 1 Johns. C. R. 502. Tiernan vs. Wilson, 6 Johns. C. R. 411. Stead’s Ex’rs. vs. Course, 4 Cranch, 403. Jackson vs. Newton, 18 Johns. 355. Ryerson vs. Nicholson, 2 Yeates, 516. Rowley vs. Brown, 1 Binney, 61. Wharton’s Dig. 343, and Berry vs. Griffith, 2 Har, and Gill, 337. The equity and policy of the principles we have asserted, in reference to the sale before us, could not be more forcibly illustrated than by the consequences which would result if in opposition to them, we were to confirm this sale.

Real estate, on which there were executions and liens, as stated at the time of sale, amounting to between four and five thousand dollars, which was proved to have been worth $5,800, was purchased at $1,100; less than one-fifth part of its value. Such a disparity between the price and value of the property sold, furnishes intrinsic evidence of the irregularity, impropriety, or unfairness of the sale; and connected with any of the several omissions of duty, or indiscretions of the sheriff before referred to, leaves not to the court a shadow of discretion as to vacating this sale.

But the gross misconduct of the sheriff in making the sale, as respects the rights of one of the parties having a lien on the property, as represented at the time of sale, is still more apparent by adverting to some of the circumstances attending it. According to a statement made at the time of the sale, there was an outstanding mortgage of between two and three thousand dollars, having a priority over all the executions in the sheriff’s hands, except that of the appellee, which though nominally for $450, had but a balance due thereon of $150.

And yet the sheriff instead of selling under the execution of the appellee, (which had a priority over all their liens) some one of the lots to satisfy the same, and then proceeding to sell the remaining lots under the other executions, which would have left all the parties in the enjoyment of their unimpaired rightful priorities, undertakes, without the semblance of authority from the mortgagee, to sell the entire property in mass under the execution of the appellee; and thus secure to the purchaser the property sold, absolutely discharged from the mortgage lien.

Such a proceeding whether so intended or not, is manifestly a fraud on the rights of the mortgagee. The judgment of the county coukt is kevehsed, and the appellants motion ruled good, and the said sale set aside, vacated and annulled. Let a procedendo issue that such process of execution may he had from the county court, as the nature of the case may require.