Spafford & Tileston v. Beach

Goodwin, J. delivered the opinion of the Court. A levy on real estate is not, as is a levy on personal property, a prima facie satisfaction.* Shepherd v. Rowe, 14 Wend. 260; Taylor v. Ranney, 4 Hill’s R. 619. In the latter, the sheriff takes possession of the property; in the former not, and, even after sale and conveyance, ejectment must be resorted to by the purchaser in order to obtain possession. The issuing of the alias fi. fa., while there was a levy by virtue of a former execution, on real [154] estate, which remained, undisposed of, was, therefore, a a mere irregularity. So, also, of the sheriff’s supposed non-compliance with the law, in the particulars mentioned in his proceedings under the alias, appearing from his return. These were mere irregularities; and the return is not, under the statuate, the evidence of title, but there must be a certificate and deed. The errors complained of being mere irregularities, should have been taken advantage of in due time by motion. Here the motion was made in January, 1845 ; the sale was in 1840. The motion comes too late. Motion denied. Footnotes [*] As to how far a levy on personal property is to he deemed a satisfaction of tho debt, see Farmers and Mechanics' Bank v. Kingsley, post.