Cash v. Tozer , 1 Watts & Serg. 519 ( 1841 )

The opinion of the Court was delivered by

Gibson, C. J.

Whether the defendants below were released from their purchase by unnecessary delay in the completion of it, w'hich kept them, as it is supposed, out of the possession and care of the property till a great part of it was destroyed, does not sufficiently appear from the special plea, which was the subject of the demurrer, and which stated the fact of destruction, but no more. Enough to show the sale incurably defective in another respect appeared in trying the issue of fact; and it would be useless to inquire into anything beside.

The foundation of the judgment on which the premises were sold, was a bond and warrant sealed by a partner in the ñame of his firm; which consequently bound no one but himself. It was entered by the prothonotary, pursuant to the statute, without the agency of an attorney; and as there was no appearance for the other partners, they were not parties to the judgment, nor bound by it. But they subsequently became parties, by an agreement of their counsel, to a judgment of revival by scire facias, which is, by our practice—unlike what it is elsewhere—not an award of execution on the original judgment, but itself an original judgment; and so far all was regular. The original warrant contained a power to waive condemnation; but there was at first no waiver by any one; and it is to be remembered that it is the separate estate of one of the partners who were originally not bound, which was subsequently sold. A fieri facias, however, was issued on the revived judgment, to May Term 1837, on which the sheriff returned that he had seized the premises in execution, and having offered them for sale on the 8th of May, the return day of the writ, had adjourned the sale from day to day, till he sold them to the defendants on the 11th; and he further returned a written agreement, signed by one of the partners for himself, and as attorney for his fellows, to waive an inquisition of condemnation, and let the property be sold on the fieri facias. The power of attorney produced in support of this agreement is very broad. It bears that this particular partner shall have authority to do, execute, and deliver, all such acts, notes, or deeds, as he may think expedient, touching the debts and concerns of the partnership, and for the settlement of its debts; to confess judgments against the partners, or either of them; to collect the debts due to the firm; to give acquittances : and generally to do all other acts necessary to be done about the partnership concerns, which the absent partners themselves could do. This possibly authorized him to bind them individually by any agreement which they themselves might have made; but did he agree to a sale after the return day of the writ ? The agreement was explicit, that the sheriff might sell without an inquisition; but no further latitude was allowed him. The sale was adjourned from time to time by consent, but of whom is not stated; and it is not shown, either by parol or in writing, to have been by consent of him whose estate was to be devested. Under these circumstances then, was it valid or void ?

The forty-fifth section of the revised Act of 1836, directs that on the written waiver of an inquisition by a defendant whose real estate is seized in execution, the sheriff “shall proceed to sell such estate on the writ of fieri facias before the return day thereof, without any further writ.” it had been a sanctioned practice to sell after the return day of the venditioni exponas, while the writ remained actually in the sheriff’s hands; and did the object appear to be no more than to put the fieri facias on a level with that writ, we would be bound to say the legislature had done no more by enactment in regard to the one, than the courts had done by decision in regard to the other. The supposed advantage, however, of selling at the ensuing court, would not induce us again to sanction a practice so anomalous, even were it a matter of first impression, and unregulated by any statutory provision. But the advantage of the practice was less real than imaginary. That those who wish to purchase, will attend a sale as readily in vacation as in term time, is proved by the practice which obtains in some of our counties, of selling with advantage on the premises ; while, on the other hand, it is evident that to sell in the presence of a crowd of indifferent spectators attracted to the spot by accident or curiosity, can add little to the bidding. But the statute has left nothing to interpretation; and we are consequently to be governed by the words of it, which are peremptory that the sheriff shall sell before the return day of the writ; consequently a sale after it is of no more force than if it were made without judgment or execution. In truth, the matter stood so at the common law, which the statute has only restored. The object was doubtless to put an end to the illegitimate practice that had crept in; and we are not ready to say that such a sale would conclude the debtor, even if made with his assent. It will be time enough, however, to decide that when it is directly before us. Here there is no pretence that he or his attorney assented to any thing but the waiver of an inquisition; and when his title has not passed, as it did not here, the price of it cannot be recovered. •

Another objection to the sale has been made on a supposition that it was void by the Statute of Frauds; which it is unnecessary to consider. There was also an exception to the sheriff’s return as evidence of the sale, which was clearly untenable, the very point having been decided in Hyskill v. Givin, (7 Serg. & Rawle 369) for reasons which it is unnecessary to repeat. Such a return is unquestionable evidence between third persons; and in this instance, where the creditors are the only parties beneficially concerned, and the name of the sheriff is used merely as a trustee, he is in effect a stranger. He was an instrument of the law, and had no motive to falsify; for had there been in fact no sale, it would have been just as easy for him to exonerate himself from further responsibility by returning the land unsold for want of bidders.

But the most important question is, whether an inquiry into the defects of the sale is barred by the acknowledgment of the deed. I had entertained a notion that this was settled in the affirmative by repeated decisions; but I am surprised to find how little foundation there is for it. The first case on the subject is Duncan v. Robeson, (2 Yeates 455) in which it was ruled at Nisi Prius that a sheriff’s deed, acknowledged after ejectment brought, precludes no objection to the sale that might have been made at the time of acknowledgment; and the same thing was repeated in Moorhead v. Pearce, (id. 458) from which is to be inferred an opinion that some objections are proper for one occasion and some for another ; but no classification was attempted or distinction drawn. Next came Knight v. Morris, (4 Yeates 341) in which a sheriff’s deed had been acknowledged after objection made; yet a subsequent purchaser on another judgment, and in trust for the creditors, was allowed to show, on the trial of an ejectment, that the sale was collusive. Mr Justice Yeates, who ruled the point, and than whom no man was better acquainted with the practice and customs of the state, declared the principle of res judicata to be inapplicable to a case of the sort; that no more had been determined by the execution court than the admissibility of the deed to acknowledgment; that the overruling of the objections to if, gave the deed no greater validity or effect than if it had been acknowledged without opposition; and that the validity of sheriffs’ sales had always been open to impeachment after acknowledgment, and left to rest on their original fairness. No judge has since directly expressed an opinion on the subject; but there are cases to show that the practice mentioned by Justice Yeates has been continued. Such is Burd v. Dansdale, (2 Binn. 80) in which the purchaser’s title under a deed regularly acknowledged was defeated by a subsequent purchaser under the judgment of one who was a lien creditor at the time of the sale, on the ground that the levy and inquisition had been set aside before the issuing of the venditioni. Now, though this principle of res judicata operates as an estoppel, and only between parties and privies, and though Mr Justice Yeates seemed to distinguish, in this respect, between the debtor and a judgment creditor, because it had not. then been established, as it has since, that a sale by any one creditor turns the land into money for the satisfaction of all, it being supposed that each could proceed against the land' only for himself by selling it over again in the hands of the preceding vendee; yet it is now certain that judgment creditors are entitled to be heard in opposition to the confirmation of a sheriff’s sale, and they are consequently privies. In Burd v. Dansdale, therefore, the plaintiff stood in the place of a judgment creditor, who, being a privy, would have been concluded by the principle of res judicata, had it been thought applicable to any one. So, in Friedly v. Scheetz, (9 Serg. Rawle 156) it was ruled that a sheriff’s sale cannot be objected to for want of title in the debtor; but no one thought of putting the decision on any supposed conclusivenes.sof the acknowledgment. In Porter v. Neelan, (4 Yeates 108) a plaintiff in ejectment, who rested his title on a sheriff’s deed, was nonsuited, because the sale had been made without a venditioni; and in Dunning v. Washmudt, (2 Yeates 86) the recital in a sheriff’s deed, was held not even prima, facie evidence of an authority to sell without producing the judgment. In these two cases, however, it does not clearly appear that the party making the objection had been privy to the sale, and they therefore may not be authority to the point; but in Smull v. Jones, (ante 128) an alleged fraud on the part of the sheriff’s vendees was made a subject of inquiry without objection in an ejectment by the debtor. The cases on the other side prove very little. In Murphy v. M’Cleary, (3 Yeates 405) the court refused to hear evidence that the inquest had been mistaken in their condemnation, remarking that if they had refused to hear evidence of the yearly value, the proper remedy would have been an application to set the inquisition aside; but that the decision was not rested on any supposed conclusiveness of the acknowledgment, is evident from the fact that the court pronounced it inoperative and void, because it had been received at an adjourned court before the return day of the writ. The only case in which even a regular acknowledgment, has been allowed to have any effect whatever, is Stroble v. Smith, (8 Watts 280), and there it was held only to raise a presumption that the proclamation required by the statute had been made. Richter v. Fitzsimmons, (4 Watts 251), on the authority of which the judge ruled the cause, was a case of confirmation by the Orphans’ Court, from whose decree an appeal lies to the Supreme Court; which differs it from the confirmation of a sheriff’s sale without such appeal. Why should the summary judgment of the execution supplant the constitutional action of a jury on the facts, or the judgment of the dernier court on the law? The execution court may indeed award a feigned issue, but is not bound to do so; and did it refuse it, the losing party would be deprived of his constitutional franchise. But why suspend the act of confirmation in any case to await the slow and uncertain event of a collateral issue, when the matter can be more profitably tried in an issue formed in an action in the regular course. A collateral issue would decide nothing but the contested point, so that an ejectment would sometimes be necessary to put the party in possession; and thus we might have two actions instead of one. We have done much to mar the symmetry of our judicial proceedings by a too free use of this professional nostrum. It is a good thing in its place; but where it is resorted to unnecessarily, it introduces most admirable disorder. Better stick to the natural method. A fraud or defect in' the sale may, perhaps, not be perceived in time for an objection to the acknowledgment; and to preclude an inquiry into it afterwards, would introduce a very short and severe judicial statute of limitations. Yet I do not say that the acknowledgment may not raise even a conclusive presumption of compliance with the requisitions of the law in regard of things to be done in the sale itself; but it surely ought not to preclude an inquiry into the authority which is the foundation of it. Here it turns out that the sheriff had, at the time of sale, no authority in his hands at all; and no subsequent confirmation can validate an act which was utterly void. We are of opinion, therefore, that the title did not pass by the sheriff’s sale; and that the defendants were not estopped from showing it.

Judgment reversed, and venire de novo awarded.