Lessee of Lore v. Hambleton

2 Del. 474

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

Per Curiam.

Harrington, Justice :

If the question was merely as to the irregularity in the justice’s proceeding, prior to the entry of judgment in this court, it would not admit of hesitation ; but the rights of third persons have intervened in consequence of the sale made under process of this court; and the present objection is taken in a proceeding collateral to the original judgment. In such a proceeding we can notice no irregularity or error in the process by which this sale was effected. All objections of that kind are precluded by the final action of the court confirming the sale; and, as it regards the purchaser, no questions can be made affecting his title but such as deny the authority of the court to institute and carry on the proceedings to a sale. 1 Baldwin's Rep. 272; 1 Harr. Rep. 477. A judgment at law binding on land and rendering it liable to sale, cannot be controverted in any collateral proceeding either for error in obtaining, or error in executing such judgment. We need not controvert the decision in Gordon vs. Rankin, that a sheriff’s sale without inquisition gives no title; though it does not appear to have been much considered; and the court in the case cited from Baldwin's Reports, doubted whether an inquisition ought not to be presumed. But taking that decision to be as cited, it is consistent with this, because lands are' by our law not liable to be sold on execution until after it has been ascertained by an inquisition that they will not rent for sufficient to pay the debt in seven years. (Digest, 204.) It is the case of want of authority in the court to order a sale without such inquisition held, (a)

The question then is, whether the entry of judgment on the transcript filed in this court made the judgment against Hambleton on justice Weldon’s docket a lien upon his lands, rendering them liable to be sold, and giving this court jurisdiction and authority to issue process for effecting such sale. For the present purpose we are to inquire whether that judgment or the proceedings on it were erroneous ; this is mere irregularity of proceeding, and might have been remedied in various forms in every stage of the proceeding until rights became vested by judicial sanction in third persons ; but we are only to inquire whether such judgment existed; and, additional ly, if it legally appeared that the defendant in such judgment had not goods and chattels sufficient to satisfy the same.

Rodney, for plaintiff. W. H. Rogers, for defendant.

A judgment recovered before a justice of the peace does not bind land. To create such a lien it is necessary to exhaust the remedy against the defendant’s goods, and to place upon the records of this court, in the mode pointed out by law, a transcript of the judgment. When that is done the judgment binds the defendant’s land, and this court has authority fully to execute the judgment and sell the land. (Digest, 342.) The requisites are a certified copy of a subsisting judgment; and the evidence furnished by the return upon an execution, that sufficient goods of the defendant cannot be found to satisfy the judgment. If there be such transcript and evidence they authorized the proceedings of this court, which resulted in a sale of the defendant’s land, and divested his title without reference to the regularity of those proceedings. The transcript of the judgment is admitted to be sufficient, but it is objected that the return to the execution does not furnish the necessary evidence of a want of goods; first, because the execution itself was not regularly issued; and, secondly, because the return of the constable shows the amount of sales to have been $62 41, and but $21 IS applied to that judgment and the balance to older claims, without specifying such claims. The first objection has been stated to be one of irregularity merely, a voidable and not a void process; and the second is answered by the act of assembly which requires only that the constable, in case of a sale, shall return the amount thereof. At most the objection is to the regularity of the return. Taking it as it stands it furnishes evidence of a levy and sale of the defendant’s goods, and that there was not sufficient to satisfy the judgment.

In our opinion the objections taken in this case, though several of them would have been fatal if they had been made to the regularity of the proceedings before the justice, or in this court before confirmation of the sale of defendant’s land; cannot avail in this collateral proceeding.

Verdict for plaintiff,

(a) Lessee of John Gordon William Rankin and others.

Court of Common Pleas, November term, 1828. Ejectment.

T. Crayton, Chief Justice, in charging the jury said; — “The question is, whether a life estate can be sold by the laws of this state upon a fieri facias without inquisition. The court are very desirous that this important question should be taken up to the Court of Errors and Appeals. Shortly after I came on the bench I had occasion to look into the question, and I consulted the chief justice of the Supreme Court, who has been on the bench for upwards of thirty years, and he said that it had been decided by him that an inquisition was necessary in case of a life estate, and that such was the opinion of his predecessor, chief justice Read. The Court of Common Pleas decided differently about fifteen years ago, but for ten years past the decisions of both courts have been the same.

The question then is, had the sheriff a right to sell the life estate without an inquisition 1 If it were a new question I should wish to have some days to consider of it, but we must be bound by the decisions of both courts. The sheriff had authority to levy his fieri facias, hold an inquisition and return his proceedings, and then a venditioni exponas should have been issued. A freehold cannot be sold on a fieri facias. An inquisition was necessary. Without it the sheriff had no authority ; and plaintiff cannot support his title under the sheriff’s sale. If the sale were void, no confirmation by the court could make it good.”

Verdict for defendant.

Thompson vs. Phillips. 1 Bald. Rep. 246. The acknowledgment of the sheriff or marshall’s deed is a judicial act which cures all defects in process or its execution, that the court has power to remedy by order. An objection to such sale must show the want of power in the court. Irregularities must be corrected by the court which issues the process. Erroneous proceedings must be reversed on a writ of error, or they are binding.

Baldwin, J. — “ All questions arising on judicial sales when their validity is questioned in ejectment must be those of authority, not of irregularity or error in awarding, executing or confirming process, or acts in pursuance of it. If the power of the court is once brought into action, no tribunal can declare their proceedings nullities; if an act is necessary to be done before their power to sell can be exercised, it will be presumed they had evidence of it unless the contrary expressly appear.”