Hazel v. Waters

11 F. Cas. 939, 3 D.C. 420, 3 Cranch 420

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: December 15, 1828
• Status: Published

Opinion

Cranch C. J.,

delivered the opinion of the Court, (Thiiuston, J., dissenting.)

The defendants contend that the declaration does not show a breach of the condition of- the bond.

The declaration does not state that the defendant Waters levied the fieri facias upon the property sold. If he did not, he had no right to sell it, and the plaintiff Hazel acquired no right to a conveyance or possession of it, and the defendant Waters was guilty of no breach of his bond by not conveying, or by not permitting Hazel to take possession of it. But if the execution had been levied upon the property, and if it had been duly sold by the constable to the plaintiff Hazel, I do not know any, law which requires the officer to make a deed. This deed would convey nothing, for no title vested in the officer. The title passes by act of law, consequent upon the facts of lawful seizure and sale under the fieri facias; and notwithstanding the deed, the party claiming under the sale, must prove’all the facts necessary to show that it was lawfully made; such as the judgment — the execution — the seizure and sale by the proper officer, and the return of the vendee as the purchaser. . For if the officer should return another person as purchaser, I doubt- whether the return could be traversed collaterally in an action of ejectment brought by the vendee. His remedy, I should think, would be against the officer for a false return.

The declaration states that the interest of Johnson only, in the property, was advertised for sale, but that the property itself was sold. It does not state what interest Johnson had in the property. It might be a reversion only ; in which case .the vendee would not be entitled, to the possession; and, if Johnson was in possession, the officer had no right to turn him out. The vendee must have brought his ejectment. But the averment of the breach is in the alternative, that the defendant Waters either refused, to. convey to. Hazel, or refused to permit him to take possession ; it is not certain which.

The declaration does not describe the property with sufficient certainty, so that it can be ascertained what it was that the officer refused to convey; “ the east part of lot No. 8, and the east part of lot No. 9, in square 455.” How much is the east part of of a lot ? and how is it bounded ?

The declaration does not state'what the terms of sale were, which he offered to' comply with, nor how. he offered to comply with them, so that the Court might judge whether it was such a compliance as required the officer to return Hazel as the purchaser, or as would give him a cause of action against the officer for not conveying the property. •

The declaration states, that Hazel, by .the sale, became the equitable owner of the property. If he acquired any right under the sale, it must have been a legal right. .If he acquired .only an equitable right, his remedy was in equity, and not at law for the penalty.of the bond.

Again: the declaration states that Hazel became entitled to receive a conveyance of all the'right, title, and interest'of Johnson in the property, and that Waters was bound to make him such a conveyance ; .but the breach'alleged is, that'he refused to convey the property itself.

For these reasons ;I think the judgment ought to be, arrested.

MoRSell, J., concurred, in arresting the judgment; but did not agree that an officer who sells real estate under a fi. fa. is not bound to give a deed to the actual purchaser.

Judgment arrrested.