Farmers' Bank v. Massey

1 Del. 186

• Court: Supreme Court of Delaware
• Decided: June 15, 1833
• Status: Published

Opinion

Johns, Jb., Chancellor,

delivered the opinion of the court.

After a full statement of the case, he said—

“The only question necessary to be considered in this cause is as to the extent and effect of the lien and levy under the writ of fi. fa. which was issued April 22d, 1816, and returned by the sheriff in the year 1818. The act of assembly relative to execution process renders it the duty of the sheriff on receiving the writ of fi. fa. to make the levy, and describes in a very special manner how he is to perform his duty, and requires that he should particularly specify each article of personal property and return an inventory and appraisement of the same at the court to which the said writ is made returnable; and in case of failure so to do, by the said act, the officer is made liable to the execution creditor for the whole amount of his debt. Dig. 207. Upon a proper construction of the provisions of this act the sheriff in this case having returned his writ and made no inventory and appraisement as therein is prescribed the right of the plff. to any further proceedings under the said writ may be questioned. Independent however of this ground it is well settled that when a levy has been made under a fi. fa. and the same is returned with an inventory and appraisement the lien of the execution is limited and confined to the personal property actually taken, and by the inventory and appraisement ascertained. This being the established law relative to execution process the subsequent proceedings must be restricted to the property levied upon by the fi. fa. on which they are founded; and hence the venditioni exponas cannot give authority to the sheriff, or legally authorize the sale of personal property not embraced by the levy. If then we apply this rule of law to the case before the court, the special return made by the sheriff under the fi. fa. decides the question. The return made by Francis Haughey, sheriff, is in the following words: ‘Fi. fa. No. 81. May term 1816, levied on goods in the hands of the administrator's amounting to $-and on lands as per inquisition annexed, subject.’ From the peculiar phraseology of this return it is manifest the sheriff had not levied upon any chattel interest, and that the leasehold interest in the lands and premises mentioned in the bill of complaint cannot be affected; it is evidently omitted; and from the bill and answer it does not appear that at the time of the levy made, the parties complainant and defendant had any knowledge of its existence. The extent of the lien under the fi. fa. being thus ascertained and defined by the levy and return, the venditioni exponas could not operate further than to authorize a sale of the goods of the intestate; and the additional words “and on land as per inquisition annexed subject” are from their import restricted to the freehold interest, and cannot include the leasehold interest. The alias venditioni exponas which issued could have no larger or greater operation than the first. The leasehold interest not being embraced by the inventory and appraisement, and the fi. fa. having been returned at the May term, 1818, the administrators of Massey, the intestate, were lawfully in possession of the leasehold interest; and in the year 1817, when they made sale of the two-story brick house and premises the same was not subject to or affected by any lien under the fi. fa. No. 81, issued by the bank in April 1816; and as administrators they had power to sell the same.

Booth, for appellants. Wales, for appellee.

The Court therefore are of opinion that the decree below be affirmed.”