Robinson v. Charles Tunnell Administrator of Milby

7 Del. 138

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinion

By the Court:

On several grounds we must make the rule absolute in this case. For in the first place, there was great irregularity in executing the writ. It was the duty of the sheriff to hear and decide every question arising as to the competency of witnesses and the admissibility of evidence on the inquiry before the jury. It was not the province of the jury to determine such questions, nor could the sheriff submit, or delegate such a power to them. As to the exception, however, taken by the plaintiff generally, to the execution of the writ by his deputy, it has been decided in England that the bailiff of a liberty may execute an elegit by warrant from the sheriff. In the. case alluded to, the question was formally made whether the bailiff of a liberty could make an inquisition and extent on an elegit by warrant from the sheriff directed to him, which the court decided he might. Sparrow v. Mattersook et al. 3 Croke 319. And we consider it is a ministerial act of the sheriff, which under the laws of this State, so far, at least, as it was executed in this case by his deputy, it was competent for his deputy to perform.

The writ of elegit is not a common law writ, even in England, hut is founded on the Statute of Westminster 2d. (13 Edw. 1 Chap. 18) and is given by it; although it is different there in several respects, from what it is under our statute, whilst in others, it is essentially the same. By the chapter of the statute of Westm. 2, referred to, the plaintiff in a judgment, or recognizance might elect (from which the writ afterwards took its name) to have execution of all the, goods and chattels, except beasts of the plough, and a moiety of the lands of the defendant, and upon which the sheriff could not sell the former, but delivered them at an appraisement, with a moiety of the lands to the plaintiff to hold quousque debitum fueritlevatum per rationabile pretium et extentum, or to hold until the debt was levied or paid by reasonable price for the goods, et mediatatem terree, and a moiety of the lands by a like reasonable extent.

On the delivery of the goods by the sheriff on a valuation, or appraisement by him, to the plaintiff in the writ, they became the absolute property of the latter at that price, but the one half of the lands to hold only until out of the rents and profits of them, the residue of the debt should be satisfied. It was subject, however, to no such condition, restriction, or limitation as is embodied in our statute in regard to the execution, extent and sale of real estate upon judgment recovered in this State; inasmuch, as it contains no provision requiring a previous inquisition to determine whether the moiety to be extended under it would rent for a sufficient sum, beyond all reprises, in seven years, or any other specified period of time to pay the debt, or the balance of it, after application of the goods at their appraisement. Under our statutory provisions in this regard, when the fi.fa. is levied on lands and after a sale of the goods, the sheriff is required, before any extent by a writ of elegit, or any sale of the lands can be made by him, to hold an inquisition to ascertain and determine whether the whtile, not a moiety of the lands, will rent for a sufficient sum, beyond all reprises, to pay the debt in seven years. If they will, the plaintiff under our statute, is put to his writ of elegit to extend the whole land embraced in the preliminary inquisition, to hold the same, until out of the proceeds, rents and profits, the debt is levied and satisfied, but not to hold the same for a longer time than the period before mentioned. Under the English statute, the term for which the moiety is held for the same purpose, is indefinite, or without limitation, as to time. It is in these particulars especially, if not exclusively, the writ of elegit in England, differs from the writ of elegit in this State. The statute on which the writ is founded in that country, does not prescribe the mode in which it shall be executed by the sheriff, but this has been well defined and established there long since by the practice and decisions of the Courts. Our statute, however, goes further, and does require in express terms, that certain things shall be done by the sheriff in executing the writ. But in these respects, it only enacts and requires what had long before been prescribed and established in England by the practice of the Courts and the form of the writthere, so far as the same are applicable here under our statutory provisions in regard to the seizure, extent and sale of lands for debt. By the practice and decisions of the Courts there, on entering upon the execution of the writ, the sheriff is to empanel a jury of twelve men, who are duly sworn and qualified to make inquiry of all the goods and chattels of the defendant and to appraise the same, and also to inquire as to the seizin and value of all his lands and tenements, which he had at the time of the recovery of the judgment, or at any time thereafter ; and upon such inquisition, the sheriff is to deliver all the goods and chattels, except beasts of the plough, and a moiety of the lands to the plaintiff, and must return the writ with such inquisition, in order that the latter may be recorded in the Court out of which the elegit issues ; and when the jury have found the seizin and value of the land, it is the duty of the sheriff, and not of the jury, to set out and deliver a moiety thereof by metes and bounds to the plaintiff. Cro. Car. 319. And it has been decided there that the inquisition ought to find the lands with certainty, that is to say, of what estate the defendant is seized therein, for to find no certain estate, will be insufficient; but if no land is returned, the sheriff, of course, can return no inquisition, for the use of that only is to deliver a moiety of the lands, if there are any. Stonehouse v. Ewen, Str. 874. Such is the mode of proceeding in the execution of the writ in England, under which it was formerly usual for the sheriff there to deliver actual possession of a moiety of the lands to the plaintiff; but after the remark made by Ld. Kenyon C. J. in the case of Taylor v. Cole, 3 T. R. 295, that the sheriff under an elegit certainly could not deliver the lands extended, this practice was abandoned, and he now delivers legal possession only, and in order to obtain actual possession, the plaintiff is there put to his action of ejectment, in which he must not only prove the judgment and by the judgment roll that an elegit issued, but also, the writ of elegit itself and the inquisition thereon, for it is the elegit and the inquisition upon it, which carve out the term and give the plaintiff in it his right of entry and recovery in this action against the defendant. And this, we believe, is the only reason why the plaintiff in a writ of elegit is now put to his action of ejectment in that country to recover the actual possession of the lands extended. Before the dictum, however, of Ld. Kenyon in the case referred to, it had been held there, that the sheriff, if resisted, could not deliver actual possession of the land on a writ of elegit, and that in such a case, the plaintiff would have to resort to an action of ejectment to obtain it. if or has the observation of Ld. Kenyon in the case of Taylor v. Cole, met with entire approval from the bench and bar in that country since his day, for in the ease of Rogers v. Pilcher, 6 Taunt. 207, Gibbs C. J. remarks “ that there is no necessity for a tenant by elegit to bring ejectment to obtain possession, but that he might enter at once, except where the tenant in possession holds under a lease of a prior date to the plaintiff’s judgment.” But whatever may be the correct ruling and opinion on this point there, the sheriffs in that country, have practically settled it, by declining, since the case of Taylor v. Cole, to deliver the actual possession of the land to the plaintiff in the elegit, or more than the legal possession, and by reason of which he is now put to his action of ejectment there, as we have before remarked, to obtain the actual possession. Tidd’s Pr. 941.

But as we have before said, the statute of this State contains certain express provisions in regard to the execution of the writ of elegit here, which have been supplied in England by practice and the rulings of the courts mere ly ; and the first of these which we shall notice, is the provision contained in See. 11 of the act, Rev. Code 895, which provides that if the sheriff, on entering upon lands and tenements to execute a writ of elegit, shall find the same in possession of the defendant in the writ, his executors, or administrators, or of any person holding under him, or them, or any of them, he shall remove the person, or persons so in possession, and deliver the premises to the plaintiff, or his agent, without inquiring into the defendant's title thereto. In such a case, the only inquiry to be instituted and the only fact to be ascertained by the inquisition of the jury is, the seizin oí the lands and tenements mentioned in the writ, by the defendant, his executors, or administrators, or by some one holding under him, or them, and if they find the same so in possession of the defendant in the writ, or any one holding under him, it is made the duty of the sheriff without inquiring into the title of the defendant thereto, to remove the person, or persons so in possession, and to deliver the premises to the plaintiff, or his agent; and which of course, means the actual possession, not the legal possession, or seizin of the premises merely, as is the practice now in England. But nothing is said in this section with reference to the case provided for in it, in regard to the ° value of the lands and tenements, or any inquiry concerning it. Indeed, our statute is remarkably reticent and reserved in all of its provisions on this point ; for it contains in no part of it, any express, or positive direction in relation to this matter. All that is said in it on this subject is to be found in See. 13 of the act Rev. Code 395, 396, which provides that if the sheriff, upon executing a writ of elegit, shall not find the defendant, nor any person holding under him, in possession of the lands and tenements mentioned in it, he shall, upon inquiring the value of such lands and tenements, also inquire by the same jury, upon oath or affirmation, into the title of the defendant in the elegit to the premises therein mentioned, and shall certify and return such inquisition annexed to the writ under which it is made; and it is only by implication and intendment that it is even mentioned in this section of the statute.

But notwithstanding the statute contains no direct and positive provision requiring an inquisition of the value of the lands by the jury on the elegit, it is undoubtedly implied and contemplated in it in analogy to the uniform practice under the writ in England from whence we have derived it; and in all cases, both in the case provided for in the eleventh section and in the case provided for in the thirteenth section of the act, the sheriff here must summon and empanel a jury to inquire and determine the annual, or rental value of the land, as it is necessary to measure the time for which the plaintiff in the writ is entitled to hold it; and this inquisition must he returned and filed, otherwise the plaintiff would have no proper, or record evidence of his title to hold the land for his term under the elegit. If the sheriff on executing the writ shall find the defendant, or any one holding under him in possession of the land, unless it be a tenant holding undei a lease from him of a date prior to the recovery of the judgment, the eleventh section of the statute makes it his duty in express terms, to remove him and to deliver possession of the premises to the plaintiff, without inquiring into the defendant’s title; and if any one should-conceive himself aggrieved by the inquisition of the jury and this summary proceeding of the sheriff under the act, he has his remedy under Sec. 15 of the statute, Rev. Code 396, which provides that the same shall not be conclusive, but a person removed from lands and tenements under an elegit, or any other person, may maintain an ejectment, or any other proper legal remedy, for recovering possession of the premises, notwithstanding such writ and inquisition, if the same were not liable to execution for said judgment. In the case, however, provided for in the thirteenth section of the statute, that is to say, in the case where the sheriff on executing the writ, shall not find the defendant, nor any person holding under him, in possession of the lands mentioned in the writ, if it shall be found by the inquisition of the jury that they are liable to be taken in execution on the judgment, the sheriff is not in such case to remove the person, or persons found in possession, nor to deliver the premises to the plaintiff, or his agent, but he is to make return of the writ of elegit with the inquisition annexed, according to the finding of the jury in the case; and if in such case, it shall be found that the lands mentioned in the writ are liable to be taken in execution on the judgment, the plaintiff in the writ may, on the return and filing of it and the inquisition, apply under Sec. 14 of the act, Reo. Code 396, to the court which will award a writ in the nature of a writ of habere facias possessionem, under which the sheriff will put the plaintiff in possession of the premises and remove such person, or persons therefrom, and all other persons who may have become possessed thereof after such inquisition. In both of which cases it is scarcely necessary to observe, the mode of proceeding prescribed by our statute differs very materially from the practice pursued in England; for whilst by the practice there, the plaintiff would in either case be put to his action of ejectment on the return of the writ and inquisition to obtain the actual possession of the land, he is in neither case obliged to resort to it under our statute for such purpose. In the latter case, however, that is to say, when neither the defendant, nor any one holding under him, shall be found in possession of the lands and tenements mentioned in the writ, the defendant’s title thereto is to be inquired of by the jury and their finding as to the same is to be returned in the inquisition, so as to lay the grounds on which the writ in the nature of a writ of habere facias possessionem may be awarded as before stated. But in both cases, whether the defendant in the writ, or any one holding under him, be in possession, or a person or persons not holding under him, be in possession of the lands mentioned in it, it is equally necessary under our statute, we think, that a jury should be empanneled by the sheriff and inquisition returned describing the lands and finding the value and seizin of them at the time of execution made, and the other facts already referred to, according to the nature of the case. In the one case, if the defendant or any one holding under him, is in possession of the land, the jury need not inquire into title, and the sheriff is to turn the defendant out and put the plaintiff in possession of it; but if neither the defendant, nor any one holding under him is in possession, then the jury, in addition to finding the fact in whom the seizin in such case may be, the value of the land and describing the same, must also inquire into the title of the defendant thereto, and if they find that it is liable to be taken in execution on the judgment against him, that is, if they find the title was in the defendant at the time of the recovery of the judgment against him, or at any time afterward, the court will, upon such return and inquisition and on application made for that purpose, award the writ to put the plaintiff in possession, as provided for in the fourteenth section of the statute.

Such, we think, is a true and correct exposition of the several provisions of our act of Assembly on the subject. The first thing to be ascertained and determined by the sheriff through the inquisition, is the seizin of the lands mentioned in the writ, whether the possession of them is in the defendant in the writ, or any person holding under him, and then the value, quantity and location of the premises, with nothing more to be done by the jury, if the fact be so found by them, except to state that they thereupon do, or do not, according as the case may be, find them liable to be taken in execution for the said judgment; but if the question of seizin is determined otherwise, and the possession is found to be in any one not holding under the defendant in the writ, then the inquiry proceeds further, and includes the title of the defendant thereto, if he has any, which should be stated and set forth in the inquisition as found by the jury, and whether in such case they also find the same liable to be taken in execution for the debt. But it is not sufficient for the jury in any case, as in the case now before the court, simply to return that the lands are not liable to be taken in execution for the debt, without finding or returning any thing more in regard to them. Indeed we do not know and could not determine from the inquisition returned in this case, whether the jury ever inquired into the seizin of the land, or whether they found any one in possession of them or not, for all they inform us through the return of the sheriff is, that they found they were not liable to betaken in execution on the judgment, without stating any fact or reason whatever for such a conclusion on their part. Every inquisition and return in such a case should disclose and contain the grounds and reasons on which the jury find that the lands are, or are not, liable to be taken in execution for the debt, as the case may be. We must, therefore, order the rule in this case, as we remarked in the beginning, to be made absolute, and that the elegit and inquisition thereon returned in the case be set aside.