Wortman v. Conyngham

30 F. Cas. 647

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: April 15, 1815
• Status: Published

Opinion

WASHINGTON, Circuit Justice.

The return made to this writ, taken by itself, is unquestionably an insufficient one; in as much as it amounts to saying, that the exigency of the writ has not been complied with, .and yet it assigns no legal reason for the failure. If the purchasers refused to comply with the terms of sale, it was the same thing as if the land had not been struck off to them; and the marshal might, and it was his duty to offer the property again to sale. If he had not time to do so, he might have made a proper return to that effect, and an alias venditioni exponas would have issued. But all that appears by this return is, that no effectual sale has been male, and if so, how can this court order the marshal to make a conveyance? Although the writ commands the marshal to bring the money into court, and in strictness he ought to do so, yet he may pay it to the plaintiff if he chooses; and this would be a sufficient return to the writ. If he has any doubt as to the right of the plaintiff to receive the money, he may pay it into court, and discharge himself from all responsibility; or, if a third person claims a right to the money, he may obtain a rule upon the marshal, to show cause why the money should not be paid into court; and when this is ordered, such person may assert his superior right to the money or any part of it, over that of the plaintiff under whose execution the money was levied; and the court will, in its discretion, hear and determine these contested claims, upon a rule to show cause. But this court, or the court of the state, have in no instance, to my knowledge, interposed in a summary way to distribute the money or to decide the rights of the claimants to it, or in any incidental question, in relation to the money; unless it has first been brought into court; and great inconveniency, perhaps injustice, might arise, if such a practice were to be introduced.

This opinion is founded upon the marshal’s return. But he has annexed to the writ, though the return has no reference to it, a paper signed by the plaintiff’s attorney, addressed to the marshal; which, in substance, directs him to credit the execution with the sum bid by F. West, as if it had been paid. It is contended, in support of the rule; that this paper amounts to an acknowledgment that the plaintiff has received the purchase money from West, and consequently that he is entitled to a conveyance. But, the short answer to this argument is, that this taper forms no part of the return, and is, in fact, at variance with it. The return is, that the purchaser has refused to comply with the terms of sale, and to pay the purchase money; and this paper states, that he has satisfied the plaintiff. But has the purchaser a right to pay the money to the plaintiff, against the will and without the consent of the officer? I am by no means clear that he ought to do so; since the marshal may pay off prior mortgages and executions, which he would have been prevented from doing, if the purchaser might pay the purchase money immediately to the plaintiff. Upon this point however I give no decided opinion, further than to state, that in a contested case, where such payment has been made, I should not feel disposed to interfere, in -a summary way, to compel the marshal to make a conveyance to the purchaser. Rule discharged.