Lessee of Boal v. King

6 Ohio 11

• Court: Ohio Supreme Court
• Decided: December 15, 1833
• Status: Published

Opinion

Judge Lane

delivered the opinion of the court:

No principle is more definitively settled, than that the process-of a court having a seal can only be evidenced by its seal, which is the appointed mode of showing its authenticity. Without it, a majority of the court hold such process void. The eases in 19 Johns. 170; 5 Cow. 550, and 5 Wend. 133, show the necessity of a seal to writs. In the two latter, a seal is allowed to be affixed by way of amendment, because necessary to the writ’s validity.

The practice in Pennsylvania is to hold the proceedings of th© •sheriff, upon executions for the sale of real estate, subject to examination, and to hear objections in behalf of the defendant, at the time of taking the acknowledgment of the deed. If this opportunity of objecting is neglected, he is concluded. 2 Bin. 46, 227. But this implied confirmation seems to have cured irregularities only; it never was held to supply defects of power. No such practice of examining the sheriff’s proceedings obtained here, until introduced by statute in 1822. Mere irregularities are now cured under this provision.

If the fi. fa. et lev. fa. were lost, the judgment, vendí, and deed, would induce the presumption that it had existed, and was regular ; but where it is produced, and shows upon its face that it is defective, no such presumption can be raised.

*The valid vendí, does not supply the defect of the original [13 fi. fa. et lev. fa. The predicate of the vendí, is a previous valid writ of fi. fa. et lev. fa., and a valid levy upon it. There must have been a seizing in execution upon authority to seize. This the vendí, could not confer. The direction to sell is not an authority to take.

A sheriff is not subject to punishment for omitting or refusing to execute a nugatory writ. He would certainly be excused for disobeying it.

New trial refused.