Purl's Lessee v. Duvall , 5 H. & J. 69 ( 1820 )

Doksey, J.

delivered the opinion of the court.

In the argument of this cause, it was urged by the appellant’s counsel, that the sale made by Darnall, the then sheriff of Prince-George’s county, under tl^g venditioni exponas issued on the 23d of June 1812, ¿p$ the deed executed by him to the defendant, who was the purchaser, did not divest the title of the lessor of the plaintiff to the lands in question. And in support of this position the following points were made:

1. That the return of the sheriff on the fieri facias, stating that he had laid it on part of a tract of land called Magruder’s Plains, containing 81 acres, was defective, as being too general, and not giving a description of the property sufficiently certain.

2. Because the lessor of the plaintiff, at the time the fieri facias was laid, had only an equitable interest in the land: And

3. Because Darnall had no power to sell the premises under the "writ of venditioni exponas.

The court do not deem it necessary to give any opinion on the first and second points, because they are of opinion that Darnall had no authority to execute the writ of venditioni exponas. The authorities clearly establish the position, that if a sheriff, uppn a fieri facias, seize goods, and return that they remain on hand pro defeclu ernptormn, and he be removed, yet he, and not the new sheriff, is to proceed in the execution; for an execution being an entire thing, he who begins it, must end it. Dalton’s Sheriff, 19. Clerk vs. Withers, 1 Salk. 323. 6 Bac. Ab. tit. Sheriff, (1)161.

The appellee’s counsel does not controvert the correctness of tliis principle, but has argued, that the venditioni exponas was the mandate of the court, in the nature of an-interlocutory order, and therefore, if erroneous, voidable, and not an(i teat being voidable, the lessor of the plaintiff, on the return of the process, ought to have moved the court to set it aside; and having failed to do this, he is precluded from taking any advantage of its irregularity in a collateral way. In answer to this objection, itis sufficient to say, that no express order appears on. the record, that the clerk should issue such a writ as has been issued; and if writs of execution are supposed to be issued, under am implied authority from the court, such authority can only be implied in those cases where the execution is warranted by the principles of law. As the writ, therefore, was directed to. Bxirnatt, instead of Maddox, it was void, and every thing done under it must be considered as a nullity.

It has been pressed upon the consideration of the court, that the security of purchasers at sheriffs’ sales, would be greatly impaired if their validity could be inquired into at any distance of time. ’ This objection might apply with great force in some cases, but it cannot serve the defendant in this cause; because the defect, which vitiates his purchase, is apparent on the record under which ho makes title. It may be bis misfortune, that be has mistaken the law, by supposing that; BarnaU' had authority to sell; but he is estopped from setting up his ignorance of the law as the foundation of his title.

The court therefore are of opinion that the judgment of the county court is erroneous.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.