23 F. Cas. 389 | U.S. Circuit Court for the District of Ohio | 1839
This is an. acr tion of ejectment; and the case is submitted to the court upon a statement agreed upon by the parties. The facts presented in the statement, and the papers to which it refers, on which the plaintiff claims title to the premises in controversy, are these: John Brown, then of Scioto county, Ohio, being seized in fee of the land in question, on the 23d of October, 1823. made liis will, devising his real estate to his wife, Hannah Brown; and, dying soon after, his will was duly admitted to probate in said county. Hannah Brown, on the 16th of February, 1825, made her will, devising her real estate to her grand-daughic’. Minerva E. B. Lucas; and died some time prior to the 2d of August. 1827; .and her will was, also, duly admitted to probate in s-.id county. Minerva E. B. Lucas, since the death of Hannah Brown, has intermarried with, and is now the wife of, the lessee of the plaintiff. The defendant claims title under a deed from Jacob P. Noel, who was a purchaser of the premises at sheriff’s ".ale. The facts connected with 1his sale, as presented to the court, are as follows: At August term, 1822. of the court of commoo pleas of Scioto county, two judgments were rendered in said court against the said John Brown; one in favor of John Smith, and one in favor of Peleg O. Whitman. Several writs of fi. fa. et lev. fa having issued on said judgments, on which no levy' was made, new writs issued 21st July, 1823; jn these the sheriff returned that he had ievied on 48 acres and 89 hundredths, part of fractional sections 13 and 14. township 1. range 21; and part of southeast quarter of section 10, township 1, range 21; and, also. 72 acres and 77 hundredths. part of southeast quarter, section 10. township 1, and range 21; which are the lands claimed by the plaintiff. After several • writs of venditioni exponas had issued. some of which were returned, ‘:Not sold for want of bidders,” and others, “Not sold for want of time.” on the 4th of December. 1824. new wrUs of ven. ex. issued; one of which was ii-n.rned by the sheriff. “Defendant dead' —the other was not delivered to the sheriff, bo other process was taken out till the 27th of January, 3830; when a vendi. issued on Whitman’s judgment. and the sheriff returned thereon, a sale of the 72 acres and 77 hundredths tract, to one Elias K. Hitchcock; and. as to the other tract. “Not sold !or want of bidders.” At the March term, 1830. of the common pleas of Scioto county, the proceedings of the sheriff were submitted to the court; the sale was confirmed, and a deed ordered to be made to the purcuaser. It also appears that the sale and appraisement of said tract was subsequently sei aside by the court, and a new appraisemt nt ordered. And on the 20th of July. 1S32. other writs of vendi. ex. issued, which wen. placed in the hands of the then sheriff of i cioto county, return
It is insisted by the counsel for the plaintiff. that the proceedings, on the judgment against Brown are void, on several grounds; and that, therefore, the sheriff’s deed vests no title in Noel.
First: It is contended that the levy is a nullity, on account of the vagueness and uu-certaintyin the description of the land levied on. It seems to be a well settled principle of law. that a levy must describe the land with such certainty as to apprize the purchaser of what he is buying, and enable the sheriff to put him in possession of the specific property sold And it is clear that the levy in question, in this respect, is defective. But this is a defect ivhich may be supplied. 3 Ohio, 274 ; 5 Ohio, 524. And the court is of opinion that the second appraisement of the land, in which it is described by metes and bounds, cures the defect in the levy. The sale was made, and .confirmed by the court, under this appraisement; and the deed was ordered* to be made with reference to it. But, if this defect m the levy had not been thus supplied, it could not be invalidated in this collateral manner. The authorities on this subject fully support the position, that after a proceeding of this nature, not absolutely void in itself, has been examined, and adjudicated upon, by a court having jurisdiction of the matter, it cannot be inquired into, except in some direct proceeding instituted for that purpose. The statute of Ohio, in force when the proceedings, under the executions referred to, passed in review before the court of common pleas of Scioto county, required the court carefully to examine them, and. if satisfied, that the sale had been conducted according to law, to cause the clerk to make an entry on the journal to that effect. This was done, in relation to the proceedings in question, with more than usual deliberation. The motion for the confirmation was made and entered upon the journal, at September term, 1832, stating the appearance of the parties by counsel; it was continued till the next term, and then disposed of by the entry of an order confirming the sale, and directing the sheriff to execute a deed. This inspection of the proceedings under the executions, and the judgment of confirmation which followed, are clearly judicial acts, within the jurisdiction of the court, which can not be collaterally drawn in question. In the case of Thompson v. Tolmie, 2 Pet. [27 U. S.] 162, the defendant claimed title to the premises by virtue of a purchase at a commissioners’ sale, under the law of Maryland, relative to the division of intestate estates, in certain cases. It appeared that the statute had not been complied with, as to several important particulars. But the court sustained the sale, and laid down the law applicable to the case to be: that where proceedings are collaterally drawn in question, and it appears, upon the face of them, that the subject matter was within the jurisdiction of the court, they are voidable only; and that errors and irregularities, if any exist, are to be corrected by some direct proceeding, either before the same court, to set them aside, or in an appellate court. And in the case of Vorhees v. Bank of U. S., 10 Pet. [35 U. S.] 471, the question was, whether certain proceedings, under the attachment law of Ohio, were to be regarded as void, on the ground of irregularity. There had been an order of court, for the sale of property; a sale had been made, and was confirmed by the court; and. although it appeared that several important requisitions of the statute had not been complied with, the court held that the sale could not be impeached by any indirect proceeding. The principle is laid down by the supreme court, that where a court has performed a judicial act, within the scope of its jurisdiction, the regularity of its proceedings cannot be collaterally impugned, especially where the rights of innocent purchasers are involved. Upon the authority of these cases, and of others, in which analogous principles are sanctioned, the court could not hesitate to sustain the levy upon the real estate of Brown, if its defects had not been supplied by the return of the new appraisement.
Second: It is strenuously urged by the plaintiff’s counsel that, as there was a suspension of execution upon the judgments, from December, 1824, till January, 1830, a period exceeding five years; and no revival of the judgments by scire facias, all process subsequently issued, and all the proceedings had thereon, were wholly void. The principles settled in the cases already referred to, apply also to this ■ exception. However irregular the proceedings may have been, the court cannot, in this form, correct those irregularities. They have been submitted to, and adjudged of, by a tribunal clothed with power by the statute to pass upon them. The court has caused it to be entered upon its journal, that those proceedings have been conducted agreeably to law; the sale by the sheriff has been pronounced to be a legal and valid sale; and an order has been entered authorizing the sheriff to make a deed to the purchaser. Upon the faith of this procedure the purchaser has paid his money, and has entered into the possession of the property. Can he r o .v be disturbed in that possession? In the case before referred to — Vorhees v. Bank of U. S. [supra] — the court say: The purchaser is
Third: We proceed now to the examination of the third exception taken to these proceedings by the plaintiff’s counsel, namely, that after the death of Brown, the judgment debtor, there was a suspension of all right to proceed upon the judgments; and that all the process issued, and proceedings had, subsequent to his death, were mere nul-lities. On this point, the doctrine seems to be well settled, that an execution is an entire thing; and that, if land be levied on, in the lifetime of the judgment debtor, the sale may proceed after his death. The levy upon the property, by execution, is regarded, in the eye of the law, as an appropriation of it for the payment of the judgment, and vests in the judgment creditor an interest, which is not affected by the death of the judgment debtor. If the execution be levied after the death of the defendant, it is clear that such levy is a mere nullity; and, for the obvious reason, that the death of the party, by operation of the law. brings about
Fourth: Another objection is taken to the proceedings in question. It is contended that the writs of ven. ex., issued subsequently to the expiration of the official term of the sheriff who made the levy, should have been executed by him, and not by the new sheriff. It may be remarked here, that in no possible aspect of the case, could it make any difference, so far as the rights of the judgment debtor are concerned, whether the process was executed by the sheriff, in office when the levy was made, or by his successor. In the opinion of the supreme court of Ohio, Fowble v. Rayberg, 4 Ohio, 56, prior to the act of February, 1824, the sale would be legal, whether made by the old or new sheriff. Until the enactment of that law, the practice was variant in different parts of the state. That statute, however, expressly provides, “that no venditioni exponas shall hereafter be directed to, or executed by, any sheriff whose term of office may have expired,” &c. As this provision was applicable to, and governed the proceedings in the case before the court, it is clear there was no irregularity in placing the writs of vendi. in the hands of the new sheriff for execution.
The exceptions to the defendant’s title being overruled by the court, judgment is accordingly entered in his favor.