Waters v. Duvall , 11 G. & J. 37 ( 1839 )

Stephen, J.,

delivered the opinion of this court.

Under the views which we have taken of this case, we do-not deem it necessary to decide many of the questions which were argued by the counsel for the respective parties before this court. Whether the proof establishes the fraudulent character of the deeds, so far as the rights of creditors were concerned, and whether they ought to have been declared void absolutely and totally by the court below, or only partially, so far as the rights of the appellee were concerned; whether the appellee as a purchaser at the sheriff’s sale, was clothed with all the rights of the plaintiff as a creditor, and therefore entitled-to impeach the deeds on the ground of fraud — are questions not necessary to be decided, because, upon the best consideration we have been able to give the case, we do not think he has shown himself to have such a standing in court, as to be entitled to call for a decision upon such questions. His right to impeach the deeds as fraudulent, must be founded upon the fact, that he has obtained a valid title to the several tracts or parcels of land, or some one of them, contained in the deeds: as a purchaser at the sheriff’s sale, and that the deeds, if not set aside, will operate to the prejudice of such title, and deprive him of the fruits of his purchase.

The first question therefore which presents itself is, has he acquired such a title? and, after a careful examination of all the proofs in the cause, we have come to the conclusion that he has not. The second fieri facias was the effective writ., under which the venditioni exponas issued, by the command of which the sale was made. To that writ the sheriff made a return, that he had seized the following tracts, or parts of tracts of land, to wit; “one tract of land called Pasture Enlarged, containing 200 acres; one tract of land called Osbourn’s Lot and part of Pleasant Grove, containing 52 acres; Part of Duvall’s Pleasure, containing 150 acres; part of Tukesbury, containing 50 acres; part of Tukesbury and Walker’s Delight; and part of a tract of land called Friendship, containing 180 acres. The return to the venditioni exponas states the sale of the following tracts, or parts of tracts of land; that is to say— one tract of land called Pasture Enlarged, containing 200 acres; one tract of land called Osbourn’s Lot and part of Pleasant Grove, containing 50 acres; one tract of land called Duvall’s Purchase, or Part of Duvall’s Purchase, containing 150 acres; one tract of land called Tukesbury and Part of Tukesbury and Walker’s Delight, containing 150 acres; and one tract of land called Friendship, containing 180 acres. In the first deed of the sheriff, executed in 1827, the lands are described to be, one tract of land called Pasture Enlarged, containing 200 acres; one tract of land called Osbourn’s Lot and part of Pleasant Grove, containing 52 acres; one tract of land called Duvall’s Pleasure or Part of Duvall’s Pleasure, containing 150 acres; one tract of land called Tukesbury and Part of Tukesbury and Walker’s Delight, containing 150 acres, and a tract of land called Friendship, containing 108 acres. In the deed of 1835, executed by the sheriff, the lands conveyed are described to be, tracts of land called Pasture Enlarged, Osbourn’s Lot and Pleasant Grove, Duvall’s Pleasure, Tukesbury and Walker’s Delight, and Friendship. The deed of the 17th of February 1824, from Nathan Waters to his son Nathan J. Waters and Samuel Ratcliffe, which is impeached as fraudulent, conveys to them the following tracts or parts of tracts of land, to wit; “All that part of a tract or parcel of land, lying and being in the county and state aforesaid, called the Pleasant Grove, whereon William Beck and Richard Toogood now live, containing 259 acres and f- of an acre, more or less; also, all that tract or parcel of land lying in the county and state aforesaid, called Walker’s Delight, containing 100 acres of land, more or less; likewise all that part of a tract or parcel of land lying in the county aforesaid, called Friendship, containing 103 acres, more or less; also, parts of three other tracts of land, called Osbourn’s Lot, Beck’s Addition, and the Parcel Enlarged, containing 276 acres, more or less. The deed from Snow-den to Nathan J. Waters, made in 1823, is for the tract of land called Friendship. These are the deeds which the complainant charges in his bill to be fraudulent, and which he seeks to set aside upon that ground. To entitle himself to impeach those deeds, or either of them, upon the ground of fraud, it is incumbent upon him to show that he became the purchaser at the sheriff’s sale, and thereby acquired a valid title to the lands therein mentioned, or to some one tract or part of a tract, conveyed by them to the grantees therein named. This we think upon a careful examination of the deeds, and the executions and returns made by the sheriff, he has failed to do.

It seems to be a principle well established, not only by the decisions of this State, but by those of our sister States, and by the laws of England, that, to enable the sheriff to sell, and vest in a purchaser at his sale a valid title, a seizure of the land sold is indispensable, and that without a valid seizure, no title can be acquired by a purchaser at his sale. Upon adverting to the return made to the second fieri facias it will be found, that the land called Friendship, is the only land embraced in the deeds alleged to be fraudulent, upon which the sherifflevied under that writ, and to sell which, the venditioni exponas issued, under which the sale was made. By that return it appears, that he levied upon only a part of that tract, without any description in the return of the part so levied upon; and that a sale made under such a seizure, without a specific description of the land sold, would be void, it is deemed unnecessary to cite authorities to prove. Had the sale therefore been made under the fieri facias, it would have been elearly void, and the purchaser would have acquired no title. But no sale having been made under the fieri facias, a venditioni ex-ponas was issued, commanding him to sell the land seized, under that writ, and under the venditioni exponas the sale in question was made. To the last mentioned-writ he returned, that he had sold not a part only of that tract stated to have been seized in his return to the fieri facias, but the whole of it; and the question is; whether such a return, made to the venditioni exponas, cures the defect of uncertainty in the seizure, and vests a valid title in the purchaser to the whole of that tract.

It is true this court have decided, in 1 Gill & John. 443, that a purchaser at a sheriff’s sale is entitled to the benefit of that officer’s return, both to the fieri facias and venditioni ex-ponas, and when the description of the subject levied on, according to the schedule returned under the first writ, is defective, it may be amended and rendered certain, by the return of the sheriff’s proceedings under the second writ; but in that case it will be found, that the return to the venditioni exponas describes the land sold by metes and bounds, thereby rendering certain the land which had been seized under the fieri facias, and states it to be the same land which had been seized under that writ; and this, it is believed, is the utmost extent to which this court has gone in giving validity and effect to such a defective seizure. But in this case, the sheriff states that he had sold the whole tract, and it not appearing by the return of the sale, what part of the entire tract sold, had been seized under the first writ, the whole sale was necessarily void for uncertainty; and this defect, it will be found, is not cured or remedied by any of the deeds executed by the sheriff to the purchaser, for they are obnoxious to the same objection as the return to the venditioni exponas.

In 2 Harr. & Gill, 345, this court has said, a sheriff cannot sell what has not been levied upon; and in 2 Bacon’s Abr. Tit. Execution, letter N., it is said, the sheriff must actually seize the property on a fieri facias, before he can sell; and that a valid seizure is essential to the title of the purchaser at the sheriff’s sale. See also 2 Baley’s Rep. 361, where the principle is stated to be, that a levy made after the term to which an execution is returnable is void, and vests no title in the sheriff or his vendee. The same principle is stated as law in 2 Tidd’s Practice 1046, where it is said, the goods being once seized, and in custody of the law, they cannot be seized again by the same or another sheriff, and if they were seized under a second execution, and sold thereon, the bargain would be void. In support of this principle Tidd referred to a decision of J. Holt, to be found in Shower’s Reports, 174. The ground of the decision is, that the second seizure would be void, the goods being in the custody of the law, and being void, the sheriff would have no authority to sell, and of course the purchaser could acquire no title at his sale. These cases we think satisfactorily establish the doctrine laid down by this court, in 2 Harr. 8r Gill above referred to, that unless there be a valid seizure, a purchaser at a sheriff’s sale can acquire no title. It was not the intention of this court to impugn or call in question this principle, in the case of Estep and Hall’s Lessee, vs. Weems, 6 Gill and John. 303. In that case it was only intended to decide, that it was not incumbent upon the purchaser to prove a legal seizure to entitle him to recover in an action of ejectment; he had a good title prama facie, without such proof on his part, to enable him to support his action; and if the language of the opinion in that case, is broad and general enough to carry the principle to a greater extent, it must be understood to be limited to the proof, which it was incumbent upon the purchaser to make in the first instance, to entitle him to recover. With this necessary qualification, the terms used ought to be understood. The tract of land called Friendship, being the only land embraced in the deeds impeached as fraudulent in this case, corresponding in name with those levied on by the sheriff, and the seizure having been only of a part of that tract, without defining the part so seized, and there being nothing in the sheriff’s deeds or return of the sale made of that land, under the venditioni exponas, to cure such defective seizure, it follows as a necessary consequence, that the complainant acquired no title at that sale, to any land which was affected or prejudiced by such deeds, and that he had no standing in the court to impeach or call their validity in question. If we are correct on these views, it necessarily follows, that the decree below sitting them aside as fraudulent and void, so far as his interest was affected by them,, was erroneous, and that the same must be reversed.

DECREE REVERSED WITH COSTS.