43 Md. 254 | Md. | 1875
delivered the opinion of the Court.
Both parties in this ejectment claim title to the lands in dispute through O’Hern.
In April, 1855, O’Hern confessed judgment to Nicholas, who, in April, 1866, caused execution by attachment to be issued thereon, and the lands were seized by the marshal as unoccupied, and so returned.
O’Hern appeared, judgment of condemnation was rendered ; fieri facias was issued thereon in 1861, and the lands were sold and conveyed by the marshal to Nicholas. The defendants claim under this title.
In May, 1855, O’Hern conveyed the lands to the Coal Company. After sundry mesne conveyances, they were sold to the plaintiffs in the year 1863, who claim to hold in this way from O’Hern.
The only point in the case, is whether the sale under the execution by attachment, was sufficient to vest the title to the lands in the defendants, to the exclusion of the plaintiffs ?
The attachment omitted the clause of scire facias, so far as the lands and tenements are concerned, or the plaintiffs as alienees thereof.
It is contended by the appellants’ counsel, that this was such defect as to vitiate the sale, and the plaintiffs’ title was not divested thereby.
The execution in this case having been issued in April, 1866, some eleven years'after the judgment, the defendant, according to the provisions of the Act of 1862, ch. 262, was entitled to the same defences, as if there had been a scire facias to revive the judgment.
O’Heru, the defendant in the judgment having appeared in the attachment proceeding, and waiving notice, the Circuit Court certainly had' jurisdiction over him, and could rightfully render the judgment of condemnation as to the lands attached, without notice to the plaintiffs in this case. The failure to give notice to them, as alienees of O’Hern, subsequent to the lien of the judgment, could not vitiate the sale of O’Hern's right to the property at the time of the rendition of the judgment.
The omission of the clause of scire facias in the attach- . ment, was without doubt a defect, sufficient to have authorized the Circuit Court, to have set the sale aside, if the objection had been made there, but it did not render the proceedings absolutely void so as to defeat the title of any purchaser brought in question, in a collateral proceeding.
Such an irregularity is insufficient to impeach the sale, except by a direct enquiry before the Court having -jurisdiction and charge of the proceeding.
Errors or defects in the proceedings where the Court has jurisdiction must be corrected by some direct proceeding before it, or by appeal; this is the universal doctrine, and has been uniformly so regarded by this Court. Barney vs. Patterson’s Lessee, 6 H. & J., 182; Miles vs. Knott, 12 G. & J., 442; Elliott vs. Knott, 14 Md., 121; Clark & Jackson vs. Bryan & Lunt, 16 Md., 172; Schley’s Lessee, vs. Mayor, &c. of Balt., 29 Md., 34.
According to tbe marshal’s return, the lands belonging to O’Hern, were attached, and so returned as in possession of no person, “the same being wild and unimproved lands.”
Such a return, if according to the fact, was sufficient if the attachment had contained the usual clause of scire facias. Barney vs. Patterson’s Lessee, 6 H. & J., 201.
The attachment, condemnation and sale of the property under the authority of the Circuit Court, were sufficient to vest in the defendants all the title, which belonged to O’Hern, at the time of the rendition of the original judgment against him.
That judgment existed as a lien on the land, then held by O’Hern, subject of course to all judgment liens and outstanding equities, existing anterior thereto. Richardson vs. Stillinger, 12 G. & J., 478.
It continued to operate as a lien until the sale of the property to satisfy the judgment, or it was otherwise discharged or became barred by limitation. Murphy vs. Cord, 2 G. & J., 182; Doub vs. Barnes, et al., 4 Gill, 11.
The plaintiffs as alienees of O’Hern, subsequent to the rendition of the judgment, are to be presumed to have had notice thereof, and to have acquired title, in subordination thereto.
All persons dealing with O’Hern, in reference to the land bound by the lien of the judgment, could only acquire rights if any, subject thereto. Martin vs. Martin, 1 Md., 368.
If the judgment had been passed or otherwise discharged so as no longer to operate, the defendants might have made such objection in the proceedings under the attachment, before the Circuit Court, whenever they had notice, that the judgment was used to their prejudice ; or resorted to such other remedies as appropriate to the case; but that the sale of the marshal can be set aside in this proceeding, upon such hypothesis, or for the reasons urged, is a proposition at war with the established doctrine of this Court.
Judgment affirmed.
