By the Court:
It has been settled that the judgment of a court of record operates as a lien upon the real estate of the defendant. Whether-this is a maxim of the common law, or was first introduced by the statute of Westminster, 2, is of no importance in this case. The law of 1795, declaring what laws shall be in force, adopts both the common law, and all statutes of the British Parliament, made in aid. of it, prior to the fourth year of James the first. In either case, this law established the principle amongst us, and it has been acted upon from the commencement of the administration of justice in the territory.
*It is equally well settled that this lien is co-extensive with the territorial jurisdiction of the court that renders the judgment The general court of the territory exercised jurisdiction, and sent its process, original and final, into any county within the territory. The judgments rendered by it were of consequence a lien or charge upon all the lands owned by the defendant, and situate anywhere in the territory. This, it is understood, is not controverted.
The legal title to the lands in dispute was not vested in the defendant when the judgment was rendered, and before the levy was made, he conveyed them to one of the present defendants, under whom the other claims. Under these circumstances, it is maintained the judgment, upon which the execution issued, never attached as a lien upon these lands. And this is the opinion of the court.
[314]*314The complainants’ counsel assert that the doctrine is settled •differently in England, and in some of the States of the American confederacy, and have adduced authorities in support of this position. But these are all rather inferences than direct adjudications.
In the case of Calhoun v. Snyder, 6 Binney, 145, the point is very fully and ably examined by two of the judges. The force of the authorities, cited in support of the opposite doctrine, is much weakened by this exposition. And the decision of the court, in that case, is placed upon such clear and satisfactory grounds, that we feel no hesitation in adopting it. The judgment, in the case of McLure v. Symmes, rendered at March term, 1800, did not .attach as a lien upon the lands in dispute, the legal title to which was obtained by the debtor in April following, and conveyed in .January, 1801, before execution levied.
The lands in controversy were located by the debtor in February, 1800, and though not patented until April, the counsel for the complainants contend that the act of Congress, under which the title is derived, invested the locator with the legal title before the emanation of a patent.
It was certainly competent for Congress to declare what should be done to invest those deriving title to lands under the laws of the United States with the complete legal title to such lands 'They provided that this shall be done by granting a patent to those entitled. Whatever *right a party may have previously acquired, he is not invested with the complete perfect title until this patent is issued. The patent is not the foundation, but the consummation of the title. Until it emanates, the legal power of the government over the subject is not at an end. Upon its emanation that power terminates, and the right of the grantee is perfected. Symmes, therefore, held no legal estate, which could be bound by a judgment, until the patent issued.
It is further insisted that whatever interest, legal or equitable, Symmes held in these lands, under the registry and location made in February, 1800, that interest was bound by the judgment in -question. And this is said to be conformable to the decisions in Pennsylvania, where the principles of jurisprudence are the same that prevailed under the territorial government in 1800. The liability of equitable interests in land, to be seized and sold upon execution as land, has never been recognized by this court, as existing either under the territorial or state governments. That [315]*315it can not now be so seized and sold, is settled both by judicial determination and legislative enactment. If these equitable interests ever could have been taken in execution at law, they must-have been seized in the character in which they existed, not in a different character. This was not, and could not be done in the case before the court. The equity, whatever it might be considered, merged in the legal title before, the levy made. And, as the judgment could not attach as a lien upon the after-acquired legal title, it could not operate upon an equity extinguished by, and merged in that title. There is no principle, upon which it can be held, that a judgment may bind an interest which can not be seized and sold to satisfy it. .
There is no force in the objection that an inquest was not held upon the land before the sale on execution.
The second and third sections of the law of 1795, subjecting real estate to execution for debt, provide for the case of land yielding-rents or profits. The fourth section embraces the case of u all other lands” that is, lands other than those which yield rents and profits. It requires no inquest, but directs a sale “ with all convenient speed,” If lands, only liable to be sold as directed by the-second and third ^sections, should be sold under the fourth, it would be good reason for setting the sale aside, upon proof of the fact. But as the law authorizes a sale, without inquisition, the court must presume the sale rightfully made, until proof is adduced that it is not.
It is no objection to the process that it was not a testatum. The-county of Fairfield was as fully within the jurisdiction of the court, with' respect to process, as the county of Hamilton. The testatum is only required where a court issues process to a county in which it has no general jurisdiction.
With respect to the fact that the debtor owned lands not aliened, at the time of the execution, it can not be given in evidence to-defeat a sale upon execution. When the sheriff’s sale is completed, by payment of the money and delivery of the deed, the title of the purchaser oughtf not to bo affected by a circumstance of this-character. To permit this, might introduce great mischiefs, and would render purchases under execution too insecure. Upon return of the execution, is the proper time to settle all questions of this kind. If a sale were pressed on before the return of the execution, so as to deprive a purchaser of an opportunity then to ba [316]*316heard, he might obtain an injunction to stay it for that pur-' pose.
The objections that the return upon the ft. fa. et lev. fa. is insufficient that a liberari facias, and not a vendi., ought to have issued, and that the vendi. does not sufficiently describe the lands to be sold, have not been consided and decided by the court, because it is not necessary now to decide them, and they may possibly be hereafter presented for consideration in some other form. There is one objection, which the court consider fatal to the complainants’ claim, as now presented. None of the deeds have been acknowledged in the manner prescribed by law, and without such acknowledgment they convey no title.
The fourth section of the act of 1795, after directing the manner of sale upon execution, proceeds, “ and upon such sale, the sheriff or other officer shall make return thereof, indorsed or annexed to the said levari facias,
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court:
It has been settled that the judgment of a court of record operates as a lien upon the real estate of the defendant. Whether-this is a maxim of the common law, or was first introduced by the statute of Westminster, 2, is of no importance in this case. The law of 1795, declaring what laws shall be in force, adopts both the common law, and all statutes of the British Parliament, made in aid. of it, prior to the fourth year of James the first. In either case, this law established the principle amongst us, and it has been acted upon from the commencement of the administration of justice in the territory.
*It is equally well settled that this lien is co-extensive with the territorial jurisdiction of the court that renders the judgment The general court of the territory exercised jurisdiction, and sent its process, original and final, into any county within the territory. The judgments rendered by it were of consequence a lien or charge upon all the lands owned by the defendant, and situate anywhere in the territory. This, it is understood, is not controverted.
The legal title to the lands in dispute was not vested in the defendant when the judgment was rendered, and before the levy was made, he conveyed them to one of the present defendants, under whom the other claims. Under these circumstances, it is maintained the judgment, upon which the execution issued, never attached as a lien upon these lands. And this is the opinion of the court.
[314]*314The complainants’ counsel assert that the doctrine is settled •differently in England, and in some of the States of the American confederacy, and have adduced authorities in support of this position. But these are all rather inferences than direct adjudications.
In the case of Calhoun v. Snyder, 6 Binney, 145, the point is very fully and ably examined by two of the judges. The force of the authorities, cited in support of the opposite doctrine, is much weakened by this exposition. And the decision of the court, in that case, is placed upon such clear and satisfactory grounds, that we feel no hesitation in adopting it. The judgment, in the case of McLure v. Symmes, rendered at March term, 1800, did not .attach as a lien upon the lands in dispute, the legal title to which was obtained by the debtor in April following, and conveyed in .January, 1801, before execution levied.
The lands in controversy were located by the debtor in February, 1800, and though not patented until April, the counsel for the complainants contend that the act of Congress, under which the title is derived, invested the locator with the legal title before the emanation of a patent.
It was certainly competent for Congress to declare what should be done to invest those deriving title to lands under the laws of the United States with the complete legal title to such lands 'They provided that this shall be done by granting a patent to those entitled. Whatever *right a party may have previously acquired, he is not invested with the complete perfect title until this patent is issued. The patent is not the foundation, but the consummation of the title. Until it emanates, the legal power of the government over the subject is not at an end. Upon its emanation that power terminates, and the right of the grantee is perfected. Symmes, therefore, held no legal estate, which could be bound by a judgment, until the patent issued.
It is further insisted that whatever interest, legal or equitable, Symmes held in these lands, under the registry and location made in February, 1800, that interest was bound by the judgment in -question. And this is said to be conformable to the decisions in Pennsylvania, where the principles of jurisprudence are the same that prevailed under the territorial government in 1800. The liability of equitable interests in land, to be seized and sold upon execution as land, has never been recognized by this court, as existing either under the territorial or state governments. That [315]*315it can not now be so seized and sold, is settled both by judicial determination and legislative enactment. If these equitable interests ever could have been taken in execution at law, they must-have been seized in the character in which they existed, not in a different character. This was not, and could not be done in the case before the court. The equity, whatever it might be considered, merged in the legal title before, the levy made. And, as the judgment could not attach as a lien upon the after-acquired legal title, it could not operate upon an equity extinguished by, and merged in that title. There is no principle, upon which it can be held, that a judgment may bind an interest which can not be seized and sold to satisfy it. .
There is no force in the objection that an inquest was not held upon the land before the sale on execution.
The second and third sections of the law of 1795, subjecting real estate to execution for debt, provide for the case of land yielding-rents or profits. The fourth section embraces the case of u all other lands” that is, lands other than those which yield rents and profits. It requires no inquest, but directs a sale “ with all convenient speed,” If lands, only liable to be sold as directed by the-second and third ^sections, should be sold under the fourth, it would be good reason for setting the sale aside, upon proof of the fact. But as the law authorizes a sale, without inquisition, the court must presume the sale rightfully made, until proof is adduced that it is not.
It is no objection to the process that it was not a testatum. The-county of Fairfield was as fully within the jurisdiction of the court, with' respect to process, as the county of Hamilton. The testatum is only required where a court issues process to a county in which it has no general jurisdiction.
With respect to the fact that the debtor owned lands not aliened, at the time of the execution, it can not be given in evidence to-defeat a sale upon execution. When the sheriff’s sale is completed, by payment of the money and delivery of the deed, the title of the purchaser oughtf not to bo affected by a circumstance of this-character. To permit this, might introduce great mischiefs, and would render purchases under execution too insecure. Upon return of the execution, is the proper time to settle all questions of this kind. If a sale were pressed on before the return of the execution, so as to deprive a purchaser of an opportunity then to ba [316]*316heard, he might obtain an injunction to stay it for that pur-' pose.
The objections that the return upon the ft. fa. et lev. fa. is insufficient that a liberari facias, and not a vendi., ought to have issued, and that the vendi. does not sufficiently describe the lands to be sold, have not been consided and decided by the court, because it is not necessary now to decide them, and they may possibly be hereafter presented for consideration in some other form. There is one objection, which the court consider fatal to the complainants’ claim, as now presented. None of the deeds have been acknowledged in the manner prescribed by law, and without such acknowledgment they convey no title.
The fourth section of the act of 1795, after directing the manner of sale upon execution, proceeds, “ and upon such sale, the sheriff or other officer shall make return thereof, indorsed or annexed to the said levari facias, and give the buyer a deed duly executed and acknowledged in court for what is sold.”
*It is obvious that the provision requiring the acknowledgment to be made in court was not meant as a mere idle ceremony, nor could it be intended as evidence of the execution of the writ, which must be returned with the sale indorsed or annexed. The requisition is plainly made for the just and useful purpose of giving the defendant an opportunity to object to the regularity or fairness of the sale. As to these matters, without this provision, he could have no day in court, and might claim to make his objections to the sale in a subsequent suit with the purchaser, which would not only be inconvenient, but might operate great injustice. This acknowledging the deed in court, conduced to the security of all parties, and is a substantial part of the transaction, which can not be dispensed with.
The case from 1 Sergeant & Rawle, 54, is full in point, as to what is the doctrine in Pennsylvania. It is of higher authority than the nisiprius cited from Judge Teates’ reports, not only because it is a much later decision, but because it was made by a full court, upon mature deliberation.
These deeds are not aided by the statute of 1802, regulating executions; that act, in terms, extends only to judgments rendered after its passage. For the purpose of satisfying judgments then rendered, it left the law of 1795 in full force. One of the means of satisfying these judgments was by the sale upon execution of [317]*317the debtor’s lands. This sale could only be conducted and perfected under the provisions of the law of 1795. These require the sheriff to acknowledge the deed in open court; if this is not done, the deed is inoperative.
After the time that has elapsed, the counsel for the complainants suggest that the acknowledgment of the deeds ought to be presumed. His argument on this point, though ingenious, is not satisfactory. The deeds are produced, and the acknowledgment, which constitutes an essential part of their execution, does not accompany them. A grant may sometimes be presumed; but if it be produced, and is defective, nothing can be presumed to aid that ■defect. The circumstances of the case rebut the presumption contended for. One of the deeds is proved by a subscribing witness, the other two have been recently acknowledged by the ^grantor. These facts show the clear understanding of the parties, that the acknowledgment required by law was never made.
The two deeds acknowledged in the supreme court of Clinton county derive no additional validity from that act.
The first legislature hold under the state government abolished the general court. The twenty-sixth section of the act of April 15, 1803, transferred to the Supreme Court “ cognizance of all judgments, causes, and matters whatsoever, whether civil or criminal, that were then pending, undetermined or unsatisfied in the general court.” It also provided that all writs issued out of the general court should be continued over, of course, to the first session of the supreme court to bo holden in the respective counties.
Under this law, the writ of ft. fa. et lev. fa., then in the hands of the sheriff of Fairfield county, was returned to the supreme court of Hamilton county, from which the subsequent processes issued. If, then, these deeds can be perfected by any after acknowledgment in the Supreme Court, that acknowledgment can only be made in the supreme court of Hamilton county, where the judgment is. The object of the acknowledgment is to give the parties an opportunity to contest the regularity of the sale, and this can not be done unless the judgment, and process upon which it is made, are before the court. It would be absurd and unreasonable to send the parties to any other county to make this investigation. Nothing short of a positive law, authorizing the acknowledgment to be taken in any county, would warrant the court in [241]*241receiving it in any other than that where the judgment, execution, .and return are of record.
The foundation of the bills in all the cases is, that the complainants each have a legal title. But the court is of opinion that the sheriff’s deeds, under which they severally claim, are all defectivo and inoperative; the bills must therefore be dismissed.
Judge Burnet, having been attorney for McLure, upon whose judgment the lands were sold, did not sit in this cause.