#### 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 sale, 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 *140situated, who shall he 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 oí 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-tliirds 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 *141with these express provisions of the law ? I think not. Would not every lawyer he 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 ? Tet 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 Bubnet, 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 sioorn according to laio.

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, &e., 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 *142printed 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, 77, 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.

McRoberts, for plaintiff in error.

T. Reynolds, for defendant in error.

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 can not 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 sheriff’s 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 liad been valued, was insufficient to entitle the lessor to recover. The judgment must be reversed with costs. (a)

Judgment reversed.

*

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 *143support 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 might depend. Williams et al. v. Peyton’s lessee, 4 Wheat., 77.