2 Ind. 309 | Ind. | 1850
Ejectment. Judgment below for the defendant.
The plaintiff claimed title to the lands in question in his lessor, Daniel Mace, by virtue of a judgment, sheriff’s sale, and deed. Said Mace was the attorney of Browning and Co., the plaintiffs in the judgment. Burditt and Calvert were the defendants in said judgment. Dutton, the grantee of Calvert, one of those defendants, was the defendant in this ejectment, and he resisted the plaintiff’s claim of title, on the ground that said sheriff’s sale and deed were void; and, to establish that proposition, he
This levy, then, not having been upon the lands of the execution-defendants, was no satisfaction of the judgment. Sullivan v. McKean, 2 N. H. Rep. 37.— The Bank v. Turney, 8 Humph. 271.
Whether, therefore, an execution upon a satisfied judg.
The prior levy in this case, then, not being such as to be regarded a satisfaction of the judgment, the issue of
We are aware that this point has been ruled otherwise. In the first Am. Ed. of Tidd’s Practice, published in 1807, vol. 2, p. 936, it is said: “Upon an erroneous judgment, if there be a regular writ, the party may justify under it, till the judgment be reversed; for an erroneous judgment is the act of the Court, and the party need not set forth in his plea that the writ has been returned. But if the judgment or execution be irregular the party cannot justify under it, for that is a matter in the privity of himself or his attorney.” Upon this authority, the Supreme Court of Kentucky decided in Hoskins v. Helm, 4 Littell, 309, that a purchase of land by the execution-plaintiff, upon an execution issued after a year and day from the rendition of the judgment, without revivor, was void; and in Waite v. Dalby, 8 Humph. 406, the Supreme Court of Tennessee followed the decision in Kentucky. But in a later, the 9th edition of the above work, Am. Ed., 1840, Mr. Tidd has changed the language of the above paragraph to the following; “Upon an erroneous judgment, if there be a regular writ, the party may justify under it, till the judgment be reversed; for an erroneous judgment is the act of the Court. But if the judgment on execution has been set aside for irregularity the party cannot justify under it, for that is a matter in privity of himself or his attorney.” 2 Tidd Pr. 3d Am. Ed. 1032. The word irregular, we may remark, does not appear to be limited by any one, to an expression of what is void only, when used in reference to judicial proceedings. And we have been able to find no English case where a defendant has been permitted to object to proceedings, either upon a voidable but not void judgment, or execu
It follows from what we have said that the sale in question was not void for the reasons alleged in this suit
' It is proper to remark that this case does not extend to irregularities committed by the sheriff in proceeding under an execution. Whether the same rule will apply as to them in regard to purchasers with or without notice, is not a question for our consideration here.
The judgment is reversed with costs. Cause remanded, &c.
) See Doe ex dem. Cooper v. Harter, ante., p. 252.