Den. Ex Dem. Tarkinton v. Alexander

The lessor of the plaintiff claimed as heir-at-law to one Zebulon Tarkinton, and having made out his case, the defendant set up title as follows: — He produced a judgment rendered at April Term, 1830, of Tyrrell County Court, in favour of one Samuel Spruill, executor of Benjamin Spruill, against the said Zebulon Tarkinton, for the sum of eight hundred and seventy-two dollars and seventy-nine cents, upon which a writ of fi.fa. issued from that term, and was returned to July Term ensuing, levied on the lands of the said Benjamin Tarkinton, by E. Mann, the then sheriff. Writs of venditioni exponas were issued regularly from term to term thereafter, until January Term, 1834, when the land levied on, being the same as that now in controversy, was sold by the aforesaid E. Mann to Ebenezer Pettigrew, and a deed of bargain and sale was executed therefor by Mann, bearing date the 1st of May, 1834. A few days afterwards Pettigrew sold and conveyed the same land to the defendant. It appeared that E. Mann continued in office until October Term, 1832, when a successor was appointed; and it appeared further, that the writs of venditioni exponas, before mentioned, including that on which the sale was made, were directed to "the sheriff of Tyrrell County," but went into the hands of E. Mann, then the late sheriff, who made the sale and executed the deed as before stated; and the sale purported to have been made, and the deed to have been executed by "E. Mann, late sheriff."

Upon this case his Honor was of opinion, that the venditioni exponas, being directed to "the sheriff," gave no authority to the late sheriff to sell the land, although it went into his hands, and therefore that the purchaser acquired no title. A verdict was rendered for the lessor of the plaintiff, in accordance with this opinion, and the defendant appealed. It is a maxim, that an execution is an entire thing, and whoever begins, must end it. Suppose a sheriff should die, after levying upon land and goods, will you issue venditioni exponases to different persons? — such a rule would create confusion. Saunderson v. Rogers, 3 Dev. Rep. 38. In Matlack v. Gray, 4 Hawks, 1, it is decided, that a sheriff is entitled to his commissions upon making a levy. Suppose he levies upon land, and goes out of office, shall be not sell to satisfy himself? or will you require the new sheriff to sell without compensation? Suppose a sheriff levies upon land and slaves, and takes a forthcoming bond for the slaves, and dies; will the executor be fined, and not be allowed to sell the land for his indemnity? 1. It is said that the case of The Governor v. Eastwood, 1 Dev. Rep. 157, is a direct authority for the regularity of the sale. I think not, for this reason: in that case, the plaintiff's claim was for three hundred dollars only: personal property to the amount of fifteen hundred dollars was sold, and there was therefore a breach of the bond, without involving the question as to the right of the late sheriff to sell realty. Hence the general remarks of the judge must be confined to the subject-matter, viz. the sale of the personalty; in relation to which they are unquestionably correct.

The case of Saunderson v. Rogers, 3 Dev. Rep. 38, is cited, to show that an execution is an "entire thing," and that the hand that begins must end it. That this also was a case of personalty, is apparent from the fact, that a forthcoming bond was given: and the opinion of his Honor Judge RUFFIN is liable to the same remark, as in the case of The Governor v.Eastwood, that the general words must be construed in reference to the particular state of facts. But why is an execution said to be an "entire thing"? For this, that in England, where the fi. fa. runs against chattels only, by the levy the defendant in the execution loses the possession and property, and the sheriff acquires it; the defendant is discharged pro tanto, and the sheriff is charged to the amount. And the old sheriff having the possession and property, it would be idle to direct the venditioni to the new sheriff, who has no means of acquiring the one or the other. It is otherwise as to realty. The sheriff sells land by virtue of a power, and not by virtue of a property. He acquires by levying, neither possession, nor property; nor can he after the sale, even give the purchaser possession. Frost Wife v. Etheridge, 1 Dev. Rep. 30. Hence, the reason ceasing, why the venditioni should go the old sheriff, the rule should cease with it.

It is asked, in argument, "suppose the sheriff levy on both realty andpersonalty, and die, is a venditioni to go as to the realty to his successor, and as to personalty to his executor? Why not? A plaintiff may have as many fi. fas. running at the same time, as he pleases, but he must be careful not to levy too much; he may have a ca. sa. and a fi. fa. running at the same time, but he must at his peril have them executed in proper order. So here the plaintiff must be careful first to exhaust the personalty, and then, through the successor of the sheriff, he may go against the realty.

It is also asked, if the sheriff levy on land and negroes, and the sale is postponed, and the sheriff sell for his commissions, and then die, and the slaves be eloigned or insufficient, how is the successor to be compensated for the sale? It may be, that the old sheriff not having completed the sale, his executor may be compelled to refund; or the plaintiff in the execution may be liable therefor on a quantum meruit; or the new sheriff may collect his commissions, and leave the executor and the defendant to adjust it between them.

It is further asked, if the sheriff levy on personalty and realty, and take a forthcoming bond, and then die, and the personalty be eloigned, how is the executor to be indemnified, unless he can sell land? This supposition contains its own answer. He must resort to the indemnity given to his testator.

The opinion of Judge HENDERSON, in the case of Seawell v. Bank of CapeFear, 3 Dev. 279, is full to the point, that so far as realty is concerned, the venditioni must go to the new sheriff.

2. Could the officer sell without process? This question is not open to discussion, it being settled by the case of Barden v. McKinnie, 4 Hawks, 279, confirmed by Seawell v. Bank of Cape Fear, that he cannot do so.

3. Had the late sheriff process authorizing the sale? On this point, it would be idle to look for authorities; and if it be not a plain case of usurpation of power on the part of the late sheriff, I know not what is. I conceive it too plain, even to admit of elucidation by argument. — It is essential to the security of property and the repose of society, that the rules by which judicial sales are regulated, should be clearly defined and strictly observed. He who sets up title under such an alienation, cannot invoke the aid of the law, if it be made inconsistent with the requirements of the law. The sale made of the land in controversy by the former sheriff, and the deed in pursuance thereof, transferred no estate unless such ex-sheriff had authority to sell. We cannot for a moment admit that he derived such authority from the writ of venditioni exponas directed to his successor. Whatever power was granted by that writ, was granted to him to whom it was directed. If the former sheriff could assert this power, every one in the land might equally assert it. This cannot be. The exercise of the power by a stranger to the writ is an act of usurpation.

The defendant, therefore, is necessarily driven to contend, that the ex-sheriff had a right to sell, without any mandate from the court, because of the levy he had made, under the fieri facias. This ground, however, cannot be maintained, without overturning the most express and authoritative adjudication. In the case of Doe ex dem. Barden v. McKinnie, 4 Hawks, 279, it was decided by this court, that a sale of land by the sheriff, after a return of fi. fa. and without a new writ, is made without authority, and passes no title. In Seawell v. Bank of Cape of Fear, 3 Dev. Rep. 279, this court, upon solemn argument, reaffirmed the same doctrine, in the most explicit terms. It has been argued, however, that these adjudications are repugnant to those in Governor v. Eastwood, 1 Dev. Rep. 157; and Saunderson v.Rogers, 3 Dev. Rep. 38; and that in this conflict of authority we are at liberty to settle the question upon principle. But on examination, it will be clearly seen, that the decisions in all the cases are reconcilable with each other, and that all authority is against the position which the defendant endeavours to maintain. In The Governor v. Eastwood, it appears that the relators, the executors of Holliday, had recovered three several judgments against Brand, amounting in the whole to three hundred dollars; that the sheriff had levied the executions issued on these judgments on certain negroes, as well as on the land of Brand, and returned no sale for want of bidders; that afterwards, without any venditioni, or other execution in his hands in behalf of the relators, he sold the negroes for fifteen hundred dollars, and the land for the like sum; that he retained in his hands money to satisfy the judgments of the relators, "and other demands" against Brand, and paid over to Brand the residue. There was no pretence that these "other demands," or any of them, had a preferable claim to satisfaction over the executions of the relators. Without regard, therefore, to the money received as the price of the land, he had made out of the negroes seized upon these executions a sum more than sufficient to discharge them; and this amount was raised by a sale consummating his levy under the executions. In Sanderson v. Rogers, it is apparent, that the property upon which the levy was made consisted of chattels which had beenseized by the former sheriff. A venditioni issued to the new sheriff, who required from the defendant in execution, and by threats of seizing those chattels, extorted from him, a forthcoming bond. It was held, that the writ of venditioni conferred no authority to seize; that it improperly issued to the new sheriff to compel him to sell what had been seized by his predecessor: that a venditioni is predicated upon the effects being in the hands of the officer to whom it is directed: that a levy under a fieri facias vests a property in the sheriff who seizes, which satisfies the debts, and makes the sheriff liable: that therefore he may sell after the return of the writ, and after his office had expired: and that upon his death, the property vests in his executors, who become responsible for the debt, and may sell the chattels. The whole of the doctrine so far asserted in the two last cited cases is in perfect conformity with that which was recognized in the others. In these it was held, that a seizure of chattels under a fi. fa. did vest a property in the sheriff by virtue of which he could assert an action founded on the right of property, became charged to the plaintiff for the value of the goods seized, and discharged the debtor to the same amount; but it was also held, that from the essential difference in the nature of the property, the operation of a fi. fa levied upon lands must be different; for that under such a levy the sheriff takes no possession, acquires no property, does not become liable for the value, nor discharges the defendant to that or to any amount. In consequence of the special property acquired in the goods by seizure, he could sell without any further command; but as he acquired no property by a levy on land, and as the power to sell conferred by the fi. fa. expired by its own limitation, he could not, after the return term, sell land, unless a new authority was granted for that purpose.

This distinction, thus recognized and settled, between the operation of a seizure of goods, and of a levy upon land under a fi. fa., we should hold ourselves bound to consider as a part of the law of the land, even if we disapproved of the reasoning upon which it was established; but what is there in that reasoning inconsistent with legal principles? It cannot be denied, although lands as well as chattels are with us liable to be sold on a fi. fa., but that the law directing the sale of these two species of property must, in some respects, be so moulded, and in many has been so moulded, in its application to them, as to be suited to their characteristic distinctions. Thus it was held, and no one doubts that it was properly held, in an early period of our jurisprudence, that since the statute of 5th George the Second, the same distinction exists between real and personal property as before, and that lands descended to an heir are not liable to be sold on a judgment against the executor of the debtor.Baker v. Webb, 1 Hay. Rep. 71. It is clear law, that a mere levy on lands does not in any manner divest either the property or possession of the debtor. This principle was recognized by all the court in the case of Frostet uxor v. Etheridge, 1 Dev. Rep. 30, and a majority of the judges held that even a sale under that levy should not relate back to the levy, so as to divest the freehold against the widow's claim to dower. We have ourselves recently declared the principle in extenso in The State v.Greenlee, 4 Dev. Rep. 150. As the sheriff, then, takes no possession, nor acquires any property by a levy on lands, assuredly he cannot maintain either ejectment or trespass in regard to them, while it is certain that he may bring either trespass, detinue, or trover, after a seizure of chattels. It would be at variance with all legal analogies to hold that a man was divested of his freehold by a mere indorsation on a fi. fa. of a levy upon his land of which he cannot be presumed to know any thing until it is returned; but the taking of his chattels is a notorious act, of which he can scarcely be ignorant. Besides, if a levy on lands passed any property to the sheriff, it must be a freehold estate, which upon his death would descend to his heir, and could not go to his executors, as is the case with goods that have been taken in execution. Rightly, therefore, does it seems to us, has it been established by our predecessors, that while a seizure of goods vests a special property in the sheriff, so that he needs no authority to sell, a levy on land vests no property, and under that levy he cannot sell after his authority is at an end, unless it be renewed. The levy operates as a lien which sets apart the land levied upon for the satisfaction of the creditor's judgment, and by virtue of this lien he may by proper process cause the land to be applied to that purpose as against the debtor, or his alienee, or his representatives, or his creditors whose liens subsequently attach. By allowing to it this operation, efficacy is given to the enactments of the statute; while by denying to it the effect of divesting the possession or property of the debtor, the settled distinctions between real and personal estate are upheld, proper regard is shown to the different modes pursued in making a seizure of goods, and a levy on lands, and much injustice, oppression and confusion are prevented. We deem it not amiss to add, that the distinctions on which we have commented, are, indeed, most striking between lands and personal chattels, while chattels real seem to hold an intermediate grade between these two species of property: yet the latter belong to the general class of personalproperty, are (in the language of the Court of King's Bench in Scott v.Scholey, 8 East, 484,) of a tangible nature, capable of manual seizure, of a transfer of possession, and of a detention in the sheriff's hands: and when so taken under a fi. fa., a property therein vests in the sheriff, which enables him to make a sale without a venditioni, or after he is out of office, and which, on his death, passes to his personal representative.Scanes v. Wilkins, 1 Ves. 195. Doe ex dem Stevens v. Douston, 1 Barn. Ald. 230. Whether a levy on a chattel real would be good for any purpose, without an actual taking or some notorious act equivalent thereto, or if effectual so far as to operate a lien, whether it would transfer anyproperty to the sheriff, are questions which have not been discussed, and are not necessarily now under examination, and which may deserve serious consideration.

A question has been much discussed at the bar, on which we might forbear to express an opinion, as the decision of that question is not necessary to the determination of this case; but as it involves an inquiry respecting the proper forms of judicial process, which ought to be the same throughout the state, and as a difference of opinion in regard thereto seems to have been entertained among our predecessors, we avail ourselves of this opportunity to effect, as far as we can, uniformity of practice. In the case of The Governor v. Eastwood, Judge HALL intimates, that when a levy has been made on land, and the sheriff who made the levy is out of office, the venditioni should be directed to him, because he commenced the execution, and ought to finish it. In the case of Seawell v. Bank of CapeFear, Chief Justice HENDERSON expressed a decided opinion that it ought to be directed to his successor, and states as a fact, that such has been the universal usage. If we were sure that either practice had been uniformly observed, we should not be disposed to change it, however it might have been settled. We are satisfied, however, that this has not been the case. It will be understood, that we do not mean to intimate an opinion, that a sale under a venditioni may not confer a good title, when made by him to whom it was directed, whether he be the sheriff who made the levy, or his successor; but it seems to us most expedient and consistent with legal usage, that where a writ issues giving authority either over the person or property of the citizen, it should be directed to the officer of the court, whose obedience can be most effectually commanded, and whose disobedience or neglect of duty can be most effectually visited. Where there has been a levy on land only, there is no reason why the venditioni should not be directed to the new sheriff. There may be in some respects a convenience, where there has been a levy both on goods and land, and the goods remain unsold, in addressing the venditioni to the old sheriff: but this convenience is not sufficient, in our judgment, to overrule the irregularity of such a course, and the many inconveniences which may result from it. In such a case, if the goods have been delivered over to the new sheriff, or he can obtain them from the old sheriff, we see no impropriety in a general venditioni to the new sheriff. If the goods cannot be had by him, a distringas to the new sheriff to compel the old sheriff to sell the goods will be the appropriate process, to which may be added a specialvenditioni, in case the moneys thereby raised be not sufficient to satisfy the judgment, authorizing the new sheriff to sell the land — or, if the plaintiff chooses to waive the levy, a special fi. fa. to the new sheriff for the residue. The modifications here suggested become necessary to carry into effect our statutory provisions, by which personal property is to be first applied to the satisfaction of debts. Should it afterwards appear, either by return of the distringas, or by suggestions of record, that the goods have been eloigned by the defendant, and the plaintiff desires any further remedy against him, it seems to us, that on a scire facias to show cause why this remedy may not be had, the court may direct such process against the defendant or his property, as shall fully meet the exigencies of the case.

PER CURIAM. Judgment affirmed.