Doe ex dem. Van Campen v. Snyder

4 Miss. 66 | Miss. | 1838

Mr. Justice Prat

delivered the opinion of the court.

We have no hesitation in laying down the general rule, that the quashing of an execution cannot defeat a sale previously made in pursuance of it.

In a case of ejectment by the purchaser at sheriff’s sale against the defendant in execution, reported in 3 Wash. C. C. Rep. 546, it was held, that the latter cannot question the title; for the sheriff in making sale stands in the situation of attorney to the defendant. Even when a judgment has been reversed, a sale of goods under execution before reversal shall stand. Comyn, tit. Execution (C 3;) 560,906; 2 Cro. Jac. 46; Dyer, 363, a.

In the second place, we regard the position taken as clearly untenable. It is in fact presenting the sheriff as a witness to impeach his own return. Even if the judgment had been paid as alleged, the authorities cited at bar establish the position, that an

execution, if returned, and endorsed unsatisfied, though in fact paid, an alias issuing after it, is regular. Luddington v. Peck, 2 Conn. Rep. 700. And a bona fide purchaser of lands under an execution issued upon a judgment, which had been paid, but on which no satisfaction had been entered of record, nor an execution returned, would be protected in his purchase. Saunders v. Caldwell, 1 Cowen, 622.

These two points being thus settled, we deem it perfectly immaterial whether Mr. Vannersen did or did not give the notice stated in the bill of exceptions. The sale being a good one, his notice could have had no effect upon it.

The opinion of the court below, in relation to the matters contained in the bill of exceptions having been suctained by this court; and these matters being all that could have been urged for' a new trial, it follows as a necessary consequence that we are satisfied that the court below was right in refusing it.

The judgment below must be affirmed with costs.