Dorsey's Lessee v. Dorsey

28 Md. 388 | Md. | 1868

Bartol., C. J.,

delivered the oinnion of this Court.

The only question presented by this appeal, is the validity of the proceedings under which the appellee claims title. These are three judgments rendered by justices of the peace, the writs of fieri facias issued thereon, the levy and sale by the constable, the order of ratification passed by the Circuit Court, and the deed from the constable to the appellee. The power to seize and sell lands under an execution issued by a justice of the peace, is conferred by the Code of Public General Eaws, Art. 83, sec. 3. Such a sale passes no title to the purchaser, until the proceedings shall have been returned to the Circuit Court, and the sale finally ratified and confirmed as provided by Art. 83, sec. 10, of the Code. When land is seized and sold by a sheriff under an execution issued by a Court of record, “it is the sale of the sheriff which vests the title in the purchaser.” Estep and Hall’s Lessee vs. Weems, et al., 6 G. & J., 306. Not so where the sale is made under an execution issued by a justice of the peace, which vests no title in the purchaser until it has been finally ratified and confirmed. In every case where an officer sells under an execution, it is necessary that he should first effect an actual seizure, for the power to sell is limited -to the property taken by the levy of the writ. Wright, et al. vs. Orrell, 19 Md. Rep., 155. The land seized and sold by the officer must be so described, that it may be ascertained and located, otherwise the seizure and sale are void. Williamson, use of Wallis, vs. Perkins, 1 H. & J., 449; Waters vs. Duval, 6 G. & J., 76. By an inspection of the proceedings offered in evidence in this case, it appears that two of the writs of fieri facias, under which the sale was made by the constable, were issued upon judgments of condemnation in attachment. The description-of the property attached in each case is “ one law office and lot of ground,” without further designation, except that it is called goods and chattels. In the judgments of condemnation it is described in the same way. The writs of fieri facias recite the property condemned and w'hich the constable is directed to sell as “one law office and the lot of ground on which it stands.” The returns to the writs state that they were levied on “ one lot and buildings' thereon,” and that the same was sold. The third writ of fieri facias was issued upon a judgment regularly rendered on a warrant in debt. But the schedule states the property levied on, to be “ one office and lot, and stable,” and the return of the officer sets forth that he sold “ the lot and buildings mentioned in the schedule.” Under the authorities before cited, it is manifest that such levies and sale are simply void for uncertainty. It has been suggested by the appellee that this defective description is cured by the officer’s return to the writ of attachment, setting forth that he had laid it in the hands of John Dorsey. But it.nowhere appears that the lot was in the possession of John Dorsey, nor is there any description or designation whatever given of the lot of ground seized, or any means furnished whereby it can be identified.

The appellee next relies upon the Court’s order of ratification. This oi’der contains a precise description of a lot of ground, which it recites had been seized and sold by the constable, but it nowhere appears from the proceedings of the officer upon which the Court acted, that the property described in the Court’s order ever had been seized and sold . by him. It is material to consider that the Circuit Court in acting upon this subject, exercised a special jurisdiction conferred by statute; and in such case the proceedings must show on their face a substantial compliance with the provisions of the law. Here, as we have seen, the proceedings show that the pretended seizure and sale by the constable was void for uncertainty in the description of the property. In such case the order of ratification cannot give it validity. The 13th sec. of Art. 83 of the Code, makes the ratification by the Court conclusive evidence “ only of the notice of sale required to be given, and the manner of making the sale.” Koechlept vs. Hook’s Lessee, 10 Md. Rep., 179. In that case it was held that after an order of ratification, the validity of the sale might be impeached collaterally, by showing that the judgment under which the execution had been issued, was obtained by fraud or surprise; or that there was no such judgment. Upon the same principle it is manifest, that where a seizure and sale by a constable, as shown on the face of the proceedings, are void, for want of a sufficient description or designation of the property sold, the defect cannot be cured by an order of ratification, so as to make the sale effectual to pass title to the purchaser. The provisions of the Code do not give such efficacy to the order of ratification. Uor does the deed of the constable to the appellee cure those fatal defects in the proceedings. The deed on its face states that the property therein described had been sold, without stating that it had been seized under the writs of execution, without which the officer would have.no power to sell. But apart from this objection, we are of opinion it was not in the power of the constable to cure the defects in his proceedings under the writs, by a deed to the purchaser. Such sales stand upon different grounds from those made by a sheriff, under an execution issued by a Court of record; in the latter the title passes by the seizure and sale, and the purchaser may resort to the deed of the sheriff or any other part of his official proceedings, to identify the land actually seized and sold. Wright, et al. vs. Orrell, 19 Md. Rep., 155, and cases there cited. But the sale of land under an execution issued by a justice of the peace passes no title till it is ratified; and if the proceedings of the officer under the execution are so defective that no title can pass by the sale when ratified, it is not in the power-of the officer thereafter to convey a good title by his deed. Without expressing any opinion upon the other objections to these proceedings stated by the appellant, we think for the reasons stated the judgment of the Circuit Court was erroneous and ought to be reversed, and under the agreement in the record a judgment will be entered for the appellant.

(Decided 17th March, 1868.)

Judgment reversed and judgment for appellant.