Simonds v. Catlin

2 Cai. Cas. 61, 1 Cole. & Cai. Cas. 346

Opinion

KENT, J.

delivered the opinion of the court. The two lirst objections go to the form of the execution, and, considering the circumstances attending this case, the plaintiff ought injustice to be held strictly to a legal title. He was the attorney who sued out the execution, and the second sale was made on short notice, if indeed any notice was given, and he himself became the purchaser. The plaintiff is, therefore, properly chargeable with notice of every irregularity attending the execution. Prior to this motion, a rule was granted to amend the fi.fajoj making it a testatum; but as the rule was granted upon the express condition of being without prejudice to the objection to be raised in this case, and which was then pending for argument, the court are justified in putting the amendment *out of view. And there can be no doubt but that the fi. fa. ought to be set aside for irregularity, on the ground of the first objection, as the cases of Allen v. Allen, and Brand v. Mears, (Bl. Rep. 694; 3 D. & E. 388; see also Barnes, 209,) go that length even after execution executed.

The second objection to this y?, fa. that it bears test out of term,

Footnotes

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(a) is equally well taken. 2 Salk, 700; 7 Mod. 80; Latch, 11; T. Jones, 150; 1 Stra. 137, 138. The process, for that reason, is held to be void, and the party suing-it out cannot take advantage of it, although it may justify the sheriff, and if the case be within the reach of an amendment, yet as the amendment must always be a matter of sound discretion, we should not be inclined to grant it-in the present case, for the reasons suggested.

The next objection goes to tbe merits of tbe case, and is founded on tbe want of a conveyance from tbe sheriff. This is a question of importance and difficulty. It has been attended with doubt and embarrassment in our minds,’ but we have come to tbe opinion, that tbe estate of a defendant cannot pass at a sheriff’s sale, unless by deed or note in writing, to be signed by tbe sheriff, as tbe party or agent who passes the estate.

Tbe act directing the sale of real estates on execution, is rilent as to a conveyance from the sheriff; and yet a conveyance upon such sales is dictated by tbe same policy that applies to all other alienations of land. Without a deed or note in writing, there would be no written document of the sale ; for, in the first place, it is not requisite to the validity of the proceedings on execution, that the writ should ever be returned; nor is it requisite, even if a return be made; that the sheriff should specify with certainty the particular hands sold, or the name of the purchaser. It would be sufficient to state, that, of the lands and tenements of the defendant, he had caused to be made the debt and damages specified in the writ, as he was thereby commanded. If, therefore, the estate passes upon the sale, without any writing whatever, the general policy of the law would, in this instance, be contravened, and would bé productive of manifest public inconveniences. In the county where the lands in "question lie, every conveyance, whereby any lands in that county may be any way affected, in law, or equity, shall be deemed *void against any subsequent purchaser, or mortgagee, for valuable consideration, unless recorded. (2 Rev. Laws, 263. The present case is not within the act, because, liere is no subsequent purchaser to contend with; but cases of that kind must often rise, and if sheriffs’ sales be not within the provisions of the act, it would work very great imposition and fraud. A purchaser would go to the records, and if he found no conveyance from the defendant, he would naturally conclude he might purchase in safety. But if a sheriff’s sale is to defeat him, be would in vain seek for tbe evidence of it. Tbe purchaser from the sheriff has nothing to show. There is even wanting the livery of seisin, which, in the simplicity of ancient times, and before writing was much in use, was held indispensable to the transfer of an estate. He could only ascertain the fact of the sale by the sheriff, from searching after, and examining, those who may happen to have been eye-witnesses of the transaction. We cannot think that the law intended to induce such inconvenience and uncertainty. If we were to judge of the sense of the legislature, from the various other cases in which the law is explicit, and which are cases in pari materia, it would leave no doubt on this question. 1 Rev. Laws, 298, 299, 802. All sales by the surveyor-general, at auction, by order of the commissioners of the land-office; sales of land by order of the court of probates, for payment of debts; sales at auction by loan-officers, of lands mortgaged to them, find sales by sheriffs for quitrents, by virtue of process from the exchequer, (and this last is a case perfectly analogous to the present,) are required to be completed by a formal conveyance from the public offices. Vol. 1, p. 324, 274, 280, 289, 295, 610. It appears to us that sheriffs’ sales must be within the statute of frauds, which declares that no estates of freehold, or terms of years, shall be granted, but by deed or note in writing, or by act and operation of law. 1 Rev. Laws, 79. We need not undertake to show that a sheriff’s sale is not an act and operation of law, within the meaning of this statute. These words are strictly technical, and refer to certain definite estates, such as those by the curtesy and dower, or those created by remitter 1 Yes. 221. It has been said by Lord Hardwicke, that a judicial sale of an estate took it entirely out of the statute. The reason why it is out of the statute we do not so well comprehend ; it is not because the sale is at auction, for it is settled that *those sales, if they relate to land, are within the statute of frauds. Nor does a sheriff’s sale appear to us to be, in its own nature, free from all danger of introducing fraud, or perjury, and so, not within the mischiefs intended to be prevented by the statute.

The case in which Lord Hardwicke is said to have ruled as broadly as stated, is quite obscurely reported. 1 Bos. & Pull. 307; 1 Esp. 101; 1 Pow. 271, 272. The agreement must have been made before the' master, or acquiesced in, in court; and it seems to have been more like a consent upon record than any thing else. At any rate, we cannot consider that observation in chancery, as a sufficient authority to set aside the plain letter of the statute.

We apprehend the general practice has been different and that upon sales, under the direction of a master in chancery as well as sales by sheriffs at law, the sale has uniformly been consummated by a conveyance.

This general usage ought to have great weight in a case where a statute is susceptible of two constructions; and especially, when the literal interpretation, and perhaps the reason of the thing, is in favor of the construction adopted in practice.

The minute provisions in our statute regulating sales on execution, and even the facts in the very case before us, are sufficient to show, that these kinds of sales are equally within the danger of the mischiefs which the act sought to prevent. The court of chancery, (3 Ves. 712,) itself has latterly admitted that it had gone rather too far in permitting part performance, and other circumstances, to take cases out of the statute of frauds. We are of opinion, therefore, that a sheriff's sale is within the statute offrauds.(a)

There was an ancient principle of the common law, that would, if it applied, have superseded the necessity of a deed. It was a rule, that where a thing took effect out of a naked power, or authority, it was good without deed; but where a thing took effect out of an interest, there it must be by deed, if incorporeal; and by livery, if corporeal. In pursuance of this rule, it hath been held, that if executors be ordered in a devise to sell land, they may do it by deed, or by parol, because the vendee takes under the devise, and not under the conveyance of the executors ; according to the principle, that whoever claims under the execution of a power, must make *title under the power itself. Whether this principle would, or would not, have applied to the present case, we need not now examine, for admitting that it did, we are satisfied that the statute of frauds has done it away.

The only remaining inquiry upon this head is, whether the return of the under sheriff was not a sufficient deed, or note in writing, within the act ? But there are several objections to this return. In the first place, it is not, in pursuance of the statute, a return in the name of the sheriff. It is expressly a return in his own name. When a man acts in contemplation of law, by the authority, and in the name of, another, if he does an act in his own name, although alleged to be done by him as attorney, it is void. In the case of Frontin v. Small, the attorney executed a lease in her own name, although stated to bo made for and in the name of the principal, and the lease was held to be void, because made in her own name. This case was recognized as good law, so late as the case of Wilkes v. Back. This return is not, therefore, an act of the sheriff, of which we can take notice. But admitting it to have been made in the name of the sheriff it could not be a sufficient deed, or note in writing, of the sale, because it has not the requisite certainty. It does not appear what estate was sold, whether an estate for years, for life, or in fee, nor is there any certainty a's to the thing sold. It is stated to be all that farm, or tract of land in Pompey, in the tenure and occupation of the defendant. But there is no kind of estimation of the quantity of land sold, nor in what part of the town it lays, or how marked and bounded. We do cot mean fo be understood to say, that a note in writing of a sheriffs’ sale must be precise as to the quantity of acres, and as to the metes and bounds, but the thing sold must, in all cases, be specified with so much precision as from the description it can be reduced to certainty, and especially in the case of sheriffs’ sales; for it was decided, (Jackson, ex dem. Jones, v. Striker, October term, 1799;) that at such sales no property could pass, but what was, at the time, ascertained and declared. This appears to us to be an excellent rule to prevent fraud and speculation at such sales, and we should be sorry to see it impaired.

A general sale by the sheriff of all that tract of land in the town of Pompey, in the tenure and occupation of the defendant, does not appear to us to comport with the rule. *It might as well have been all that tract of land in the county in his possession. We are of opinion a more definite description of the situation and amount of the land, aud of the quantity of the defendant’s interest therein, ought to have been stated, and that the evidence of this sale^ even admitting it to have been duly made by the sheriff, has not the requisite certainty.

In England, when the sheriff extends lands by elegit (Doug. 478;) he returns an inquisition, specifying the farm the number of acres, the metes and bounds, the value, &c Yet the statute of W. II. 13 E. I. c. 18, which gave the elegit, only required in general, that the sheriff deliver one half of the defendant’s land, until the debt be levied upon a reasonable price, or extent. If, however, all the objections hitherto raised had been surmounted, we are of opinion that the evidence offered on the part of the defendant at the trial, ought to have been received, to show the sale was fraudulent and void. The evidence went to show that the first sale was valid and binding, and had been carried into effect by a deed from the sheriff. That the second sale was made, at the solicitation of the plaintiff, without any notice by advertisement, and on his indemnity to the sheriff, who was then on his death-bed, and incompetent to do business .These circumstances ought to have been left to a jury, tc draw such inference from them? as the case required, and it is not to be disputed but that the whole sale may be rescinded on the ground of fraud. For these reasons, we are of opinion the verdict ought to be set aside, with costs to abide the event. [1]

Motion granted.

Aliter, if it had been returnable out of term, it would be only voidable. Cramer v. Van Alstyne, 9 Johns. Rep. 386.

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S. P. Jackson v. Catlin, 2 Johns, Rep. 248, affirmed, on a writ of error, (8 Johns. Rep. 520,) ruling also that, although a deed be executed by a sheriff, and delivered to the attorney for the plaintiff on a fi. fa. tobe handed over to the grantee on payment of the purchase-money, the ¿state does not pass to him till the money he paid.

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Under the Code, where an execution is issued against real property, the real property adjudged to be sold must be sold in the county where it lies by the sheriff of the county, or by a referee appointed by the court for that purpose; and thereupon the sheriff or referee must execute a conveyance to the purchaser, which conveyance shall he effectual to pass the rights and interests of the parties adjudged to be sold. Code of Procedure, § 287, [see. 242.]