Denn ex rel. Inskeep v. Lecony

1 N.J.L. 111

• Court: Supreme Court of New Jersey
• Decided: November 15, 1791
• Status: Published

Opinion

Kinsey C, J.

now delivered the opinion of the court.

It has been argued, 1st that the plaintiff deduced no tide because the testatum fi. fa. upon which the sheriff sold the land, to Inskeep appeared to be tested out of term, and so, perfectly void, and of no sort of authority.

2nd, That the Testatum jl. fa. was not inspected, and for that reason void, as an execution against land.

On the first exception it was urged that the process on which the deed was founded, being a mere nullity, the deed of course, could convey no title. The sheriff acts under the writ, and if it be no writ, he can make no sale upon it. As to this, it is certainly true, that some cases are to be found, which go to the length of saying, a writ tested out of term is void, in the full extent of the term; and at Common Law, certainly the fault is incurable; it was so held also in the time of William III. since the Stats, of Jeofails, with however much reluctance. But a more liberal and just opinion on that subject has latterly prevailed, and the settled doctrine now is, that a teste out of term may be amended. Wright v. Macevoy.

(a) This doctrine is also established by later canes. (b) It is true the amendment was not made when the writ was offered; hut that is not necessary, for if it might be amended, the court would consider it as done.

3rd. it has been argued that the fi.fa. was utterly void, because the judgment and process were not inspected; and the words of the act of Assembly have been relied on, which are, “ That no process against real estates shall issue, until one of the Judges of the Supreme Court, shall have inspected the record of the judgment and thereon certified, that he has inspected the same, and therein, no error is apparent to him; and in like manner one of the said judges shall inspect the process to be issued and certify thereon, as aforesaid, and the said judgment and process, with such certificates shall be recorded &c. before sending such process to any sheriff or other officer or officers.”

These words are said to go the full length of an express Legislative declaration, that real estate shall not be sold, by fi.fa. unless that fi. fa. is inspected and recorded; and that the construction must be the same, as if the act had declared all void, without this inspection and record. As to this question, I shall consider it, on the 7th and 8th sec. of the act in Allinson % Dec. 1743, without regard to the act of August 50th 1784. sec. 15. which it has been contended, does not repeal the former act in this particular. The first does in no part declare, that process not inspected and recorded shall be void; and the estates sold under it. On the contrary it is evident, that this regulation was designed, the better to secure purchasers, against errors, in the judgment and process; for the 8th sec. provides, that after such inspection and record, no reversal of the judgment shall affect purchasers, and the reasons preceding the enacting part of the 7th sec. prove this incontestibly. This act then, was designed, to add a new security, and not to abridge or lessen the precedent rights of purchasers at common law.

Many cases have been cited on the point of void proceedings, and the counsel for the defendant have considered the term “ void” frequently used in the books, in its most unlimited sense, as implying an act of no effect at all, and being a-nullity, ab-imtio. But- this is a mistake, when the term is used in reference to the solemn judgments and acts of the Superior Courts, it means no more than voidable. The judgment or proceeding may be avoided, but until this is done in the direct and regular course of revision, they stand, are available, and may be justified under as the solemn acts of-the Courts. This also is reasonable, or it would follow, that Inferior Courts might decide upon the proceedings of the superior, by declaring them void, and the superior by examine sag such questions, incidentally or collaterally deprive the party of his more solemn and orderly redress.

To this ijoint the C. T. cited the case of Hall v. Briges. (a) He said it did not follow that when a statute directed a thing to bs done in a certain way, that all other modes are null and void. The stat. of administrations, directs administration of Intestates estates, to be granted to the widow or next of kill, and yet the grant of it to another is not void, until pronounced so, in a course of revision: see the ease of Blackborough v. Davies, (b)

It would be attended with great injury, to construe acts of the superior courts void, for every variation from the strict rule of proceeding. There is a case in 1 Vezey where after a Ca. Sa. executed, a fi. fa. was taken out and a term sold upon it. This was a great irregularity, so much so, that Ld. Hardwicke said the fi. fa. would have been set aside on motion. Yet he held the sale good, because the sheriff might have justified under the writ. If so an officer may justify under a void writ; for all irregular writs are so, There is so much inattention among the practitioners and officers that a liberal construction to protect property, is necessary to the peace and security of individuals.

Sayer 13. 35. Geo. 3.

Vide Tidd Frac. 913.

3 Salk 674,

1 Ray. 685.