1 Blackf. 210 | Ind. | 1822
Ejectment against Armstrong for a lot of ground in Lawrenceburgh. Plea, not guilty. At the trial, the evidence of the plaintiff below was objected to, because the ouster was laid in the declaration to have taken place previously to the demise; but the Court overruled the objection. After the plaintiff had closed his testimony, the defendant offered in evidence the record of a judgment on attachment against the lessor, a writ of fieri facias thereon, and the sheriff’s return; also a deed from the sheriff to the execution creditor, and a ’deed from him to the defendant. To the execution and return, and to the deeds, the plaintiff objected, and the Court refused to admit them in evidence. Yerdict and judgment for the plaintiff below.
The declaration states that the demise was on the 1st of October, 1819; and that by virtue thereof the plaintiff entered, and was possessed of the premises until the defendant, afterwards, that is to say, bn the 2d of April in the year aforesaid, ejected him. Here the videlicet is in direct contradiction to the word afterwards, and the precedent matter, and therefore whatever comes under the videlicet must be rejected as surplusage and void. This question has been so long settled, that it is a subject of surprise to the Court that the plaintiff in error should insist upon the objection. The cases of Adams v. Goose, Cro. Jac. 96, and Wyat v. Aland,1 Salk. 325, are exactly in point; and
The indorsement on the fieri facias by the sheriff, and the-statement in the bill of exceptions, both show that the lot was sold by the authority alone of that execution. The admissibility of the fieri facias therefore, as evidence in support of the title of the defendant below, rests upon the same question with the admissibility of the sheriff’s deed, which recites that the lot was sold by virtue of the fieri facias. That question is, whether the sheriff’s sale by authority of a judgment in attachment, and a writ of fieri facias, was valid? The question seems to the Court a plain one. Such was the feudal policy of the common law, that the freehold was never subject to be sold for debt by virtue of any kind of execution. It could not even be extended except in favour of the king, and against an heir on the obligation of his ancestor. The writ of elegit is of statutory origin. Even at this day, real estate cannot be sold in England on execution for debí. The only reason why the sheriff could ever sell it in this country was, because the authority was given to him by statute, whenever, after judgment, he was commanded by a certain kind of execution. At first the execution warranting the sale was such a one as that before us
It is contended by the plaintiff in error, that the circumstance of this judgment’s being on attachment makes it a different case. We do not think so. The statute of 1810, which was the law ydien this sale took, place, is general as to the sheriff’s having
The cases of Reardon v. Searcy’s heirs, 2 Bibb, 202, Lawrence v. Speed, Ibid. 401, Hayden v. Dunlap, 3 Bibb, 216, and Jackson v. Rosevelt, 13 Johns. R. 97, referred to by the plaintiff in error, are we believe good law, but not applicable to his case. It is a fair presumption, that the judgment of a competent Court which a bona fide purchaser sees of record has been correctly rendered; and that the execution shown him in the hands of the sheriff, has regularly issued. It may be safely presume^ too, that the sheriff has done his duty in obeying the directions of the statute, as respects the inquest, the advertisement of sale, &c. The cases cited prove nothing more. Vide also Doe v. Thorn, 1 Maule and Selw. 425. It is important to the interests of both plaintiffs and defendants, that the title ofa bona fide purchaser at sheriff’s sale should not be affected on account of any error or irregularity in the judgment or execution
In the case before us there was no venditioni exponas, which, by the statute of 1810, was the only kind of execution that could warrant the sale under consideration
The judgment is affirmed, with costs.
After issue joined, in ejectment, on the title only, no exception of form or substance shall be taken to the declaration. Stat. cited in the text. Acc. Stat. 1823, p. 296.
Stat. N. W. Terr. 1795, p, 15. — Stat. Ind. Terr. 1807, p. 55.
The title of a purchaser at sheriff’s sale is not affected by a subsequent reversal of the judgment. Stat. 1823, p. 195. Manning's case is the leading one on this subject. 8 Co. R. 187.
A sheriff’s deed is inadmissible, unless the judgment and execution under which the sale was made be produced; these documents being necessary to show the sheriff’s authority to sell. Den v. Wright, 1 Peters’ C. R. 64.— Jackson v. Hasbrouch, 12 Johns. R. 213. — Bowen v. Bell, 20 Johns. R. 338. Vide also Doe v. Smith, where, in an ejectment, the lessor being the party in the original action in which the execution issued, the plaintiff was required not only to produce the execution under which the sheriff had sold, but likewise the judgment. 1 Holt, 589, and note,
This statute of 1810 is repealed. For the present law on the subject, vide Stat. 1823, p. 188.