McLaughlin v. McLaughlin

Mr. Justice Woodward

delivered the opinion of tho court, January 7th 1878.

In the trial of this cause in the court below, the parties asserted their respective titles to the land in controversy under conflicting sheriffs’ sales made of it as the property of William McLaughlin. The first sale was by virtue of process issued in a judgment entered on the 3d of April 1861, in favor of J. E. Willis. A fieri facias went into the sheriff’s hands on the 5th of April 1861, under which a levy on this land was made, and on which it was endorsed. Subsequently the writ was stayed by the order of the attorney for the plaintiff, and was returned to the office files. On the 80th of January 1862, in pursuance of the praecipe of the attorney, a certified copy of the writ was made out and delivered to the sheriff, who hold an inquisition on the 28th of February, when tho property was condemned. The inquisition was approved by the court on the 5th of March. A venditioni exponas was issued on the 14th of July; the land was sold to J. E. Willis, the plaintiff in the judgment, on the 30th of August; and the sheriff’s deed was acknowledged in open court on tho 3d of September 1862. Throughout these proceedings William McLaughlin, the defendant in the judgment, was in possession of the property, and immediately after the execution of the sheriff’s deed entered into a written lease with Willis, and became his tenant. He was drafted into the army in 1864, and was killed in the early part of 1865. His widow, the defendant below, remained in possession as Willis’s tenant until the 10th of September 1869, when she purchased and received a conveyance of the land.

An earlier judgment than that of Willis’s was a lien against William McLaughlin. It was entered on the 21st of March 1861, in favor of John Hildinger, as plaintiff, and the same land was levied on and condemned under a fieri facias to December Term 1863, and sold under a writ of venditioni exponas to Thomas McLaughlin, the plaintiff below, on the 30th of January 1864.

Numerous exceptions were taken in the course of the trial, and twelve errors have been assigned to the rulings of the court on questions of evidence, to the answers to the points presented, and to the instructions given to the jury. Everything contained in them, however, that is essential in the present inquiry, is covered by the first, second and fifth errors assigned to the final rejection of the defendant’s first two offers of evidence, and the offer specified in the fifth error, which, in the first instance, had been admitted, and by the twelfth error, complaining of the peremptory direction in the concluding portion of the charge, that “ the sheriff’s deed to Willis, under whom the defendant claims, vested no title in him.” The reason for the direction had been previously stated by the judge to be, that when a writ of fieri facias “ has been stayed by order of the court, or by the plaintiff, when he has the power to do it, inquisition and condemnation cannot be had on it, for it is then as though never issued.”

In some of the northern counties of the Commonwealth, according to the recollection of two members of this court, the practice of placing writs on which real estate levies had been endorsed, and which had been stayed by plaintiffs or their attorneys, in the sheriff’s hands for purposes of inquisition and condemnation, has been long pursued. Writs have been sometimes stayed in pursuance of agreements between the parties, sometimes to serve the convenience of sheriffs, sometimes for want of time, and sometimes on account of the absence or engagements of attorneys. Would a writ thus stayed become a simple nullity ? Or would the levy only be annulled, and an alias fieri facias be the only process open to the plaintiff? What, then, would be the fate of the levy ? How could it be eliminated from the face of the record ? The fact of its existence would be just as absolute as the fact of the existence of the fieri facias itself. A fresh writ against chattels could not go out, for the levy would intervene between the judgment and such a writ. A venditioni exponas could not go out, for an inquisition would not have been held on the land. In Shryock v. Jones, 10 Harris 303, it was held that “ process is under the control of the party issuing it until the rights of others become vested. The plaintiff or hi§ attorney may stay the writ at any moment before the sale, provided his dominion over it be so exercised as not to mislead the purchaser, but whether it shall go on or be stayed, is a matter over which the plaintiff, while it is in fieri, has absolute authority. Even a stay of proceedings on a writ levied on personal property, does not involve the loss of the lien, and does not affect the plaintiff’s right as against the defendant or the goods, although it exposes him to the risk of having his execution postponed: 1 Tr. & H. 831. A stay by the order of a plaintiff of a venditioni ex-ponas of goods, where there is no collusion shown between him and the defendant, and where the property was left in the defendant’s possession, was used by him as before the levy, and either consumed or disposed of by himself or sold under subsequent judgments and executions, will not operate to postpone in favor of junior judgments the lien of the plaintiff’s judgment on the real estate of the defendant: Morrison v. Hoffman, 1 Barr 13; Campbell’s Appeal, 8 Casey 88. So, the plaintiff may withdraw his writ without necessarily discharging his lien on the real estate as respects other judgment creditors: Cathcart’s Appeal, 1 Harris 416. The case is still stronger in favor of a plaintiff whose writ has been levied on land. As between him and the defendant, particular equities might be raised by particular circumstances, but as against judgment creditors and other outside parties, he has the right after levy to delay proceedings to secure condemnation so long as may suit his own reasonable convenience. And this right seems to have been recognised throughout the history of the state. In Weaver v. Lawrence, 1 Dall. 380, decided in 1788, it was held whore an inquisition on lands under a fi. fa. had been quashed for irregularity, tlie sheriff might proceed to hold a new inquest after the return of the fi. fa., without a new writ. Usually, the original execution has been withdrawn from the files, but it may well be that the more methodical and safer practice in all cases would he that which was pursued here of delivering a certified copy into the sheriff’s hands.

Not only wore the proceedings on the Willis judgment not objected to by William McLaughlin, but after the sale was made, ho became the tenant of the purchaser. He acquiescing in the validity of the process by which his title was divested, no other person, in the absence of proof of collusion or fraudulent practice, could make that process the subject of debate. At the utmost, the condemnation by the sheriff’s inquest, under the authority of the certified copy of the original writ, was an irregularity, and of that the defendant in the judgment could alone complain. In Crawford v. Boyer, 2 Harris 380, it was held that only the defendant, and he within a reasonable time, might object to the want of a confirmation of an inquisition as required by the Act of 188C. And the consent of the defendant will validate a sheriff’s sale of improved land without inquisition, although without such consent the sale vould be void: Wray v. Miller, 8 Harris 111. A sheriff’s sale of a defendant’s real estate upon a judgment and execution against him, without a condemnation or waiver of inquisition in that particular case, and a deed acknowledged to the purchaser without objection, and the proceeds of sale appropriated to the defendant’s debts, will divest the title of the defendant to the premises, and a subsequent sheriff’s sale of the premises as the property of the defendant will confer no title on the purchaser. A defendant must object in a reasonable time, and such reasonable time is before the confirmation of the sale and the acknowledgment of the deed: Spragg v. Shriver, 1 Casey 282.

Where the essential requisites of a judicial proceeding are shown to have been complied with, the law will not annul it for failure of directory formalities. A levy and sale by a sheriff on an execucution issued upon a judgment against a testator’s executors, without naming them, vests a good title in the purchaser: Jones v. Gardner, 4 Watts 416. In Speer v. Sample, Id. 367, an execution issued on a judgment after the death of the defendant, was held not void, but only voidable, and a sale on the execution was held to vest in the purchaser a good title. Here the inquisition was expressly approved by the court on the 5th of March 1862, five days after it was taken, and on the 3d of September 1862 the deed was duly acknowledged. The effect of this action has been settled by a long line of cases. “ The Act of 1806, as well as the subsequent statutes, made it the duty of the sheriff to give notice o.f an inquisition to be held on real estate which he seized in execution. But the omission to give notice was an irregularity for which the sale might have been set aside. It never was a reason for declaring the purchaser’s title void after deed made and payment of purchase-money”Black, G. J., in Meanor v. Hamilton, 3 Casey 137. The provisions of the Act of. Assembly in relation to the acknowledgments of sheriff’s deeds are directory, and after a deed has been acknowledged and delivered to the purchaser, it is to be presumed that they have been complied with: Stroble v. Smith, 8 Watts 280. It is true that the acknowledgment by a sheriff of a deed executed by him is not such res adjudicate/ as precludes an inquiry into the legality of the proceedings: Braddee v. Brownfield, 2 W. & S. 271. And the absence of authority, or the presence of fraud, utterly frustrates the operation of a sheriff's sale as a means of transmission of title, and may be insisted on after the acknowledgment: Shields v. Miltenberger, 2 Harris 76. But it is sufficient to raise the presumption, in the first instance, that the statutory requisites for notice to parties have been complied with, and this presumption must prevail until it is rebutted by satisfactory countervailing proof: St. Bartholomew’s Church v. Wood, 30 P. F. Smith 219. It cures all defects of the process or its execution, which the court has power to act upon: Thompson v. Philips, 1 Bald. 246. And it cures mere irregularities of every kind: Blair v. Greenway, 1 Brown 219. The stay of the fieri facias of Willis was a mere suspension of the proceedings against William McLaughlin’s land. But if it had been more than that — if strict rules of practice had required an application to strike off the levy, and for leave to issue a fresh writ — the confirmation of the inquisition by the court, the award of the venditioni exponas, and the acknowledgment of the sheriff’s deed, would have clothed the process with thoroughly effective vitality, and have cured all irregularities and defects of form. The evidence specified in the first and second assignments of error, and the testimony specified in the fifth assignment, should have been submitted to the jury. The cause must go back for a fresh trial. It may possibly present other features than those now disclosed. If it do not, however, it is not seen how the defendant’s right to a verdict can be made a debatable question.

Judgment is reversed, and venire facias de novo awarded.