Quinn v. Wiswall

GOLDTHWAITE, J. — 1. It is generally assumed by the commentators that it was a settled rule of the common law that judgments in either of the superior Courts, had relation to the first day of the term, and that a consequence of this relation, was the overreaching of even bona fide alienations of lands made by the debtor before the rendition of the judgment, but after the commencement of the term. [3 Black. Com. 324; 2 Saund. 8 K.; Farm v. Atkinson, Willis, 427; Bragner v. Longwood, 7 Term. 20; 2 Bacon Ab. Ex. J.; Johnson v. Smith, 2 Burr. 950.] In 3 Salk. 212, it is said, that Lord Holt recognized the general rule, but an exception was, when the record showed the contrary, as where there was a memorandum on the roll, or a continuance of the cause until a future day of the term. Lord Mansfield, in Portchester v. Petrie, of which a note is given 2 WAPs. Saund. 148 b., says, that Hays v. Wright, Yelv. 35, and Miller v. Bradley, 8 Mod. are to the same effect. We think it very possible, that if the statute of 29 Chas, g, had never been passed, it would long since have been discovered, that the earlier dicta of the English judges on this matter, (for we have been able to find, no case, where a bona fide alienation was held inoperative against a subsequent judgment,) were contrary to the general spirit of the common law, and especially to that maxim, which declares that a legal fiction shall work injury to no one. It is true, the particular sections of the statute of frauds, intended to extirpate the mischiefs, which grew out of holding a judgment to have relation to the first day of the term, have never, in terms, been re-enacted in this State; but there are enactments which produce the same effect. Thus the records of the respective Courts within this State, for each preceding day of every session, shall be read in open Court, on the morning of the succeeding day. [Clay’s Dig. 296, § 38.] And all judgments shall bear interest from their date. [Ib. 284, § 5.] But what is entirely conclusive of the subject, is; that the act which gives the writ of elegit, directs the sheriff to cause to be delivered to the plaintiff, a moiety of [650] the lands, &c. whereof the defendant at the day of obtaining the judgment, or at any time afterwards was seized. [Ib. 200, § 1.] The decision in Morris v. Ellis, 3 Ala. Rep. 560, shows that the subsequent act giving a fi.fa. upon judgments, is to be construed in connection with that which previously gave the elegit, and binds in the same manner. We deem it useless, therefore, to consider the case of Coutts v. Walker, 2 Leigh, 268, and the other Virginia cases, in which a different conclusion is arrived at. This reasoning necessarily disposes of that branch of the plaintiff’s argument* which insists that the sale was good under Gurden’s execution, by making the judgment relate to the first day of the term. [Pope v. Brandon, et al. 2 Stew. Rep. 401.] 2. The venditioni exponas issued at the suit of Hunt, although in the hands of the sheriff, at the time he made the sale under the writs of fi.fa. at the suit of other creditors, contained no claim authorizing the sheriff to levy anew if the property described did not produce sufficient to satisfy the judgment, and therefore did not operate to transfer to it the levy subsequently made under junior judgments. The like proceedings which the statute directs to be had on such a writ,refer to what might, and ought to have been had in relation to the effects levied upon, and notto property generally. [Clay’s Dig.203,§ 9.] Ordinarily, the writ of venditioni exponas is a mere command to the sheriff to perform a part of his duty which has been omitted, but it may also be a fi.fa. for the residue of the debt, when the goods taken are not sufficient to satisfy the whole. [2 Saund, 47, r.] In the present case the writ merely commands the sheriff to expose lands to sale, which he had previously levied on, and a purchaser searching the office would not receive any information from it, that it was an authority to sell any other property than that mentioned in it. It would in our opinion, be carrying the doctrine of liens much too far to transfer one from a junior judgment, to an older one, when the only connection is the existence of a vend. ex. The reason why a sheriff’s sale is held good, although actually made under an execution having no lien, when in fact he has the authority to sell under another, is, the purchaser is only required to ascertain the right of the sheriff to make the sale under some valid process. So far as the purchaser is concerned, the sale [651] resolves itself into a question of authority to sell, or the want of it. This authority is derived from a judgment, the command to execute it, and its actual execution. [Bradford v. Ware, 2 Ala. Rep. 676, and cases there cited; to which may be added those cited by the plaintiff.] 3. All the other points pressed by the plaintiff may be briefly answered, with the observation, that the defect of his title, as exhibited, is, that the sheriff was invested with no authority reaching the land sold by him. The execution first issued on Hunt’s judgment, had ceased to confer any authority, because no levy was made under it, so as to affect the land in question, and that might as well have been sold under any other dormant judgment. There is nothing in the case of Campbell v. Spence, 4 Ala. Rep. 543, or Webb v. Bumpass, 9 Porter, 201, which is not in accordance with the views now expressed, as both of them recognize the general principle, that a purchaser will not be required to investigate the conflicting liens of different plaintiffs, and the former was an adjudication upon, not as supposed, the liens of different judgments, but of judgments sought to be enforced by existing executions. It is not for us now to settle, either the rights of Gurden against Hunt, or against the sheriff, or to show that Hunt, if forced to refund the purchase money, either to Wiswall or to Gurden, may yet enforce his lien against the land now in controversy. All these questions are foreign to this case, though, doubtless, properly enough adverted to, as showing what consequences must grow out of our decision. Our conclusion is, that the Circuit Court erred in instructing the jury, that the sale by the sheriff had relation to the date of Hunt’s judgment, and that his deed conveyed the land in controversy as of that date. As this point will probably be decisive of the cause, but the more especially as no foundation is laid for raising the question in relation to the proof of the will, we decline to decide it. Let the judgment be reversed and remanded.