
    The Ohio Life Insurance and Trust Company v. James Goodin and others.
    1. In order to justify the reversal of a judgment or decree upon error, the record must show affirmatively, not only that error intervened, but that it was to the prejudice of the party seeking to take advantage of it.
    2. Where an improved city lot is described by the appraisers as containing thirty feet front, more or less, and in that connection they certify the value of the lot to be “ S260 per front foot, for ground and improvements," and the same description is carried into the advertisement and the return of sale, and it subsequently appears that the lot was only twenty-seven feet front, it is not competent under the statute to confirm the sale, and at the same time deduct from the aggregate purchase money the price paid, per front foot, for the deficiency.
    3. In the exercise of the power conferred by the statute, the court should either confirm or set aside the sale, but should not modify its terms.
    4. Where an appraisement or sale is fairly susceptible of two interpretations, if the variance is material, the court would be justified, genez-ally, in setting the same aside, and ordering a resale.
    6. Where the question as to the regularity of a decree is taken from a special 'term of the Superior Court of Cincinnati, on petition in error, to a general* term, and the decree is there reversed, and one of the defendants in error files a petition in error in the Supreme Court to reverse such judgment of reversal, he can not assign, as cause of reversal, the non-joinder with him of another party in the original petition in error, unless such objection was made in the geáeral term, by answer or otherwise.
    Error to the Superior Court of Cincinnati.
    In April, 1855, Josiah Higdon filed, in the Superior Court of ■Cincinnati, his petition to enforce a lien for a paving tax, assessed by the city of Cincinnati, against certain real estate *owned ■by James and Samuel II. Goodin, hereinafter described.
    To that petition all persons having liens upon said real estate were made parties defendant, among whom were Thomas B. May-bee and the Ohio Bife Insurance and Trust Company.
    Both Maybee and the Ohio Bile Insurance and Trust Company filed answers and cross-petitions, claiming affirmative relief against the Goodins, and for a foreclosure of certain mortgages which they •held on said real estate.
    At the June term, 1856, of said court, a judgment was rendered in favor of the plaintiff and against James and Samuel H. Goodin, for §145.90 and interest from October 1,1855; and at its November term, 1856, a decree was taken against the Goodins, upon the cross-petition of Maybee, for the amount due him upon his mortgage, .and for a sale of the real estate described in the petition.
    The Goodins had been the owners of the property described in the original petition and mortgaged to Maybee, for about forty years prior to the time of the sale hereinafter stated.
    It is described in the deed to them, as it is in the mortgage to Maybee, as follows: “ Being lot No. 8, and 38 feet in width, of the west side of lot No. 7, as known in the plat of subdivision made by Arthur St. Clair, and fronting on the south side of Court street eighty-three feet, and running back between parallel lines ninety feet deep.”
    More than twenty-five years before the commencement of Hig■don’s suit, the city of Cincinnati condemned three feet of the east side of the premises described in the petition, for the purpose of an .alley, for which the city paid the Goodins the sum of $230, the full value of the three feet at that time. Ever since, said alley has been kept open by the city, and has been used by the public as a •common thoroughfare, known as “Goleman alley.”
    
    The description in the deed to the Goodins for said property seems to have been adopted by Higdon in his petition, *with■out regard to the three feet which had been condemned by the city.
    The Goodins, in their mortgages to Maybee and the Trust Company, also followed the description of the original deed to them, .although they were not, nor had they been, the owners of three feet on the east side of it, for many years. There are three distinct tenements on that portion of the property retained by the Goodins, which cover the entire fronton Court street, to wit, eighty feet.
    When an order of sale issued under the decree of Maybee, the sheriff subdivided the property with a view to the three tenement» on it, for the purpose of appraisement and sale under it, which ■subdivision was appraised and confirmed by said court. The following is a copy of his plan of subdivision :
    
      
    
    The controversy in this case is in regard to lot No. 3 of the sheriff’s subdivision.
    The inquisition of the appraisement shows that the appraisers '¿valued “ lot No. 3, being 30 feet front, more or less, on the south side of Court street, and running back ninety feet between parallel lines the same width in rear as in front, and being next adjoining lot No. 2, for ground and improvements, at $260 per front foot." The advertisement of the sheriff describes it in the same words as the inquisition.
    The sheriff in his return says: “ That he struck off and sold to John B. Stallo, lot No. 3 in the subdivision aforesaid, beginning on the south side of Court street, 53 feet east of St. Glair alley; thence east thirty feet more or less, to an alley; and from thence and the point of beginning, extending back between parallel lines, the same width, ninety feet, for the snm of $211 per front foot.”
    
    On the day of the sale Stallo paid to the sheriff the sum of $6,830, the price bid per front foot multiplied by 30, both he and the sheriff then thinking and believing that there were thirty feet front in lot No. 3. In this, however, they were mistaken, there being but twenty-seven feet front to the lot.
    On the 10th day of April, 1857, the Goodins moved the court .to set aside the sale to Stallo, assigning as one of the reasons, that “ the price was grossly inadequate ; ” but the court, on the 11th day of April term, 1857, confirmed the sales so made to Stallo and others, ordered deeds to be made to the purchasers, and the proceeds of said sale to be distributed. On the 23d day of said April term, being twelve days after this order of distribution, and after distribution made, Stallo having obtained possession of the premises purchased by him, discovered that said subdivision No. 3 was but 27 feet front, instead of 30 feet, and thereupon filed a motion in said court to have the mistake corrected.
    The motion of Stallo was supported by the following affidavits and evidence:
    Jefferson Buckingham, then a deputy sheriff of ^Hamilton county, says, that he made an actual survey of lot No. 3, sheriff’s subdivision, which is marked thereon as measuring thirty feet, more or less: that it measures only twenty-seven feet; and that it was sold to Stallo by the front foot.
    
    John W. Coleman says, that he has known the property sold to Stallo for the last forty years; that he owns the lot next east thereof, adjoining the alley; that said alley has been opened and used by the public for more than twenty-five years; that some three feet of it came from the Goodins’ lot; that the same was paid for by the persons interested in it; that the Goodins got for the three feet taken from their lot, one hundred and seventy-five dollars; that they told him they had received their pay for it; that that sum was the full value of said three feet, at the time it was condemned by the city for an alley.
    Henry Eckhardt says, that he is a surveyor, and is now employed in the auditor’s office of Hamilton county as such ; that he made an actual survey of lot No. 3, purchased by Stallo, and that it contains but seventy-seven front feet; that it appears from the ■duplicates in the auditor’s office, that the Goodins have for the last twenty-three years paid tax on only eighty feet front on Court street.
    Also, a copy of a record of a proceeding had by the-city of Cincinnati to condemn land for a ten foot alley running from Court to Ninth street, in Cincinnati, showing that three feet of the ground therefor came off the east side of the Goodins’ lot; that their damages were assessed at $230; and also their receipt therefor.
    The motion filed by Stallo came on to be heard at the same term at which the final decree was entered, and the court entered a supplemental decree, finding that Stallo had paid for thirty feet of ground front on Court street, when he had only in fact got twenty-seven; that he had paid to the sheriff by mistake $633 more than he should have paid, and that said money had been distributed to *the Ohio Life Insurance and Trust Company. The court ordered that the Ohio Life Insurance and Trust Company refund to Stallo the amount he had paid to the sheriff by mistake.
    To these findings and rulings the defendants, Goodins, excepted. The ease was taken to the general term of the Superior Court by the Goodins, whore the findings and rulings of the court at special term were reversed. This petition is prosecuted to reverse this judgment of the general term.
    
      Robert L. McCook, for plaintiff in error, made the following points:
    A court, of error will not reverse a judgment or decree of an inferior court, unless the party claiming it can show that his substantial rights have been interfered with, nor where it appears from the record that the proper judgment or decree was rendered, under all the circustances of the case. Hanna v. Kelly et al., 14 Ohio, 502; secs. 138, 295 of the code.
    A purchaser at a sheriff’s sale or master’s sale, under a decree in chancery, is sufficiently a party to the action in which the sale is made, to move for a confirmation thereof, or to take any necessary steps therein to protect his rights in the premises. Landsdown v. Elderton, 14 Ves. 512; Gray v. Gray, 1 Bevans, 199; Deidrick v. Smith et al., 6 Humph. 138; Reed v. Fite, 8 Humph. 328; Requa v. Rea and wife, 2 Paige, 339; Blackman v. Baker et al., 2 Swan, 340; Smith v. Bolton et al., 3 Iredell’s Eq. 347; Caffey 
      v. Caffey, 16 Ill. 141; Mason v. Adams et al., 3 Sumner C. C. 318; 1 Sugd. on Ven. 83.
    When a purchase of real estate is made by the front foot, at a sheriff’s or master’s sale, under a decree of court, and a mistake is made in the quantity purchased, and the money has been paid into court, the purchaser is entitled to a confirmation of the sale, and a reduction for the actual deficiency of ground. Voorhies et al. v. De Meyer, 2 Barb. 37; Hall v. Buckley, 17 Ves. 394; Shoul v. Bogan, 2 *Eq. Ca. Abr. 688, Pl. 4; Stibbins v. Eddey, 4 Mason, 414; Leslie v. Thompson, 5 E. L. & E. 165; King v. Wilson, 2 Bevans, 124; Bailey v. Snyder et al., 13 S. & R. 160; Ashman v. Smith, 2 Penn. 211; Wilson v. Matthews et al., 5 H. & M. 164; Union Canal v. Everett and wife, 9 Paige, 168.
    When a sheriff or master and a purchaser at a sale under a decree of court, make a- mistake in regard to a purchase, and the money is paid into court and distributed before the error is discovered, a motion in the case to correct the decree of distribution, is 'the proper remedy for the purchaser. Caffey v. Caffey, 16 Ill. 141; Deidrick v. Smith et al., 6 Humph. 138; Smith v. Bolton, 3 Iredell’s Eq. 347; 3 Dana, 615; 2 B. Mon. 408; 5 Humph. 355; 2 Paige, 240; 3 Edward’s Ch. 578, and 4 Ib. 703.
   Peck, J.

This petition in error is prosecuted by the Ohio Life Insurance and Trust Company; and we are met upon the threshold •of our inquiries, by the fact, deducible from the record, that the decree at general term, complained of, if erroneous, was one in favor of the party who now seeks to reverse it.

The rule is well settled, that, in order to justify the reversal of a judgment or decree, it must appear affirmatively by the record, not only that error has intervened, but also that it was prejudicial to the party seeking to take advantage of it. 6 Ohio St. 294; 9 Ib. 6, and cases cited.

By the original decree of the special term, the sum of $2,121.82 was distributed out of the proceeds of the several sales, to the plaintiff in error, in part payment of its judgment liens. The supplemental decree directed it to refund $633 of that money to J. B. Stallo, and to look to the Goodins for the sum so refunded. The decree of general term reversed this supplemental order, and reinstated the ■original order of distribution; and it is difficult to see why tho plaintiff in error should complain of such a result. It may be that the G-oodins did not obtain a *supersedeas on filing their petition in error, and it may also bo that the plaintiff in error had in fact paid over the money to Stallo before the revising order at general term; but we can not infer either, and much less both of these-facts, from the record before us. These considerations would, doubtless, warrant us in affirming the decree of the general term, as-against the plaintiff in error, without further remark as to the regularity of that decree, or the one it reversed ; but inasmuch as some-of the points relied on by the plaintiff in error are of much practical importance, we have concluded briefly to consider them. The most important of these is, whether the court at special term, upon the record and proof before them, erred in allowing the pro~ rata deduction of $633 from the purchase money paid by J. B. Stallo. The most that the record and proofs established or tended to establish, was, that the sheriff, appraisers-, and purchaser understood and believed that lot No. 3, running to the alley, was thirty, instead of twenty-seven feet front, and that, so believing, it was advertised, appraised, and sold by the feet front. At said special term Stallo claimed, and the court seem to have supposed, that it was to be assimilated to the case of a mere mistake in computation, which could be coi’reeted by mere recomjoutation—multiplying the true number of feet front by the price bid per foot. In this we think there was manifest error. If the lot was wholly unimpi*oved, or if the improvements had been separately estimated, there would have-been some color for the assumption. There were three distinct tenements upon the mortgaged promises, covering the entire ground from alley to alley, and the tract was so subdivided that one of the tenements stood upon each lot. The house upon lot No. 3 extended to the Coleman alley, and was believed to be thirty feet wide, and with reason, for there was that much ground of the premises described in the mortgage lying west of lot No. 2. The appraisers believing thus,and beingupontheground,certifythat,upon actual view of that ^particular lot, they estimated the value of the ground and improvements at $260 per foot front. May it not, with reason, be claimed that they estimated what they viewed as worth thirty times two hundred and sixty dollars ? But, again, the purchaser gets with his twenty seven feet all the improvements which entered into their estimate of the value of the entire lot. How much of this estimate was for the ground,” and how much for the improvements,” does not appear, and no computation could have ascertained it. For aught we know, the improvements may have been very valuable and entered largely into the estimate, so much so, indeed, as to have-induced the appraisers to increase the rate, had they been advised' of the true width of the lot.

We are aware that the appraisement and terms of sale would bear the construction claimed by the plaintiff in error, that is, an appraisement and sale of the lot at a specified price per foot, and its frontage to be subsequently ascertained; but we also think they may fairly be construed as a valuation of the ground and improvements at thirty times the sum of $260, and as a sale at thirty times-the sum of $211; and we also think the latter construction best suited to the conduct of judicial sales under the statute. Such seems to have been the construction at first put upon it by purchaser and sheriff in this case. There was no previous measurement to-ascertain the frontage of the lot, and no express reservation of a right to do so, before or at the time the money was paid, which was several days prior to filing the motion at special term, one month after the sale. The statute does not contemplate a survey, t«) ascertain the amount of purchase money, before it is demand-able. It is payable immediately, though the sheriff may, for his-own security, retain it until confirmation. Judicial sales should always be certain, and not subject to any future contingencies, so-that all bidders may have equal advantages. All such sales, whether by judgment or decree, are regulated by the same statute, and the power of the courts is very properly limited *to a confirmation or vacation of the sale, as to which they are to exercise a sound, legal discretion, and in which all parties—the plaintiff, the defendant, and the purchaser—may be heard. The power is to confirm or set aside, but not to modify the sale, or its terms. In the exercise of this power, courts may, doubtless, confirm a sale, and at the same time coi’reet any mere error or mistake made in-the computation, where the records and papers furnish all the elements for making the correction; but they are not, while thus acting, invested with general powers to hear testimony in order to-correct mistakes and give effect to the intention of the parties to a sale. The power to confirm or set aside, if properly exercised, will afford ample protection to the parties and to the purchaser, and there, in our judgment, this summary power of the court over the matter should terminate. If, from misapprehension or other cause, the sale ought not to be confirmed, as it was made, the best and -only proper remedy is a resale, with or without a revaluation, as justice may require. Again, the Goodins did in fact own the fee •of thirty feet west of lot No. 2, though three feet of its westernmost side, was subject to the public easement; and it is questionable whether the fee of that three feet, subject to the easement, did not pass to Stallo by the sale, notwithstanding the call of an alley in the description of the lot sold to him. The appropriation for an indefinite period to public uses, might constitute a ground for setting aside the sale at the instance of the purchaser, but none whatever for a reduction of the purchase money. The cases cited by the counsel for the plaintiff in error to the point, that purchasers of real estate under a decree of court, where a mistake is made in the quantity purchased, are entitled to a confirmation of the sale and a reduction for the actual deficiency of ground, do not sustain the position for which they are cited. They are all cases, not of judicial sales, but of contracts for the sale of land, in which the chancery powers of the court were invoked to enforce performance according to the terms of the agreement and the intent of the parties, and for obvious reasons do not apply to judicial sales under the statute.

¥e are therefore of the opinion that the court, at special term, •erred in making the deduction of $633 from the money paid by J. B. Stallo. His relief, if he was entitled to any, was to have the •sale set aside; but this he did not ask, and, from the record, we presume did not desire.

The plaintiff in error also insists that the decree of reversal at general term was erroneous, because Stallo had a legal right to be heard, and was not made a party thereto. All this may be true, and yet the objection, so far as the plaintiff in error is concerned, comes too late. The objection should have been made at the general term by the plaintiff in error or some of the defendants. Having gone to a hearing upon the petition in error, and, so far as the record shows, without objection, the plaintiff in error can not now complain.

Judgment affirmed.

Brinkerhorr, C. J., and Scott, Suture, and Gholson, JJ., cod ■ curred.  