Doe, on the Demise of Wayman v. Naylor

2 Blackf. 32 | Ind. | 1826

Blackford, J.

It is contended that the execution of fieri facias did not authorise the sale; but that an inquest to inquire as to the rents and profits, and a venditioni exponas, were also necessary. By the second section of the act of 1818, subjecting real and personal property to execution, Stat. 1818, p. an inquest and venditioni exponas were made necessaiy, in cases where the defendant requested an inquest. That section of the statute of 1818 was repealed in 1820. Stat. 1820, p. 113. This repealing act was itself repealed in 1821; Stat. 1821, p. 36; and consequently the second section of the act of 1818 was revived. The act of 1822, p. 81, is supplemental to the act of 1818, as amended by that of 1821, Stat. 1821, p. 3, and supplied an omission in the statute of 1818, by authorising a venditioni exponas and sale, where the rents and profits would not sell for a sufficient sum to pay the debt.

Payne, for the plaintiff. Naylor and Nelson, for the defendant.

The act of 1818, sec. 2, governs this case, which was in the year 1822; and as the record shows no request for an inquest, none was necessary; nor was a venditioni exponas necessary, which was only required when there had been an inquest. The fieri facias, therefore, must be considered as having warranted the sale.

The case of Armstrong v. Jackson d. Elliott, Nov. term, 1822, cited by the defendant does not apply ⁽¹⁾. That case was governed by the act of 1810, according to which the inquest and venditioni exponas were necessary without request.

The objection to the fieri facias and return, as evidence in this case, should have been overruled.

It is contended that the sheriff’s deed had not been properly acknowledged, and was therefore inadmissible. The deed appears on its face to have been regularly executed, and its execution is attested by subscribing witnesses. An acknowledgment is necessary for the admission of a deed to record, but is not essential to its validity. The want of a proper Certificate of acknowledgment was, therefore, no ground for rejecting the sheriff’s deed.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the issue are set aside, with’ costs. Cause remanded, &c.

(1) Vol. 1. of these Rep. 210.