M'Key v. Garth

Allen, J. delivered the following as the opinion of , the court: This court is of opinion that as evidence had been introduced tending to prove that a second execution had been taken out by the constable, under which, and other executions in his hands, the sale was made; however the question might have been as to the lien of the first execution, in a controversy between the plaintiff in said execution (alleging that the second execution was taken out without his consent) and the constable, yet in this action between the purchaser at the sale and a claimant of the property, the title of the purchaser must be referred to the process under which the sale was made. That whilst on the one hand, where the officer holding two executions sells under the second, the title of the purchaser is good against the plaintiff in the first, and the remedy of the latter is against the officer, so on the other hand the purchaser at such sale cannot invoke the lien of the first execution, in aid of a title acquired at a sale made under the second. The court therefore erred in instructing the jury that they must regard the sale as having been made under and by virtue of the original fi. fa., though they might have been satisfied, from the evidence, that the sale was irj fact made under and by virtue of the second fi. fa. and other executions in the hands of the officer. The judgment is therefore reversed and the cause remanded, with instructions to set aside the verdict and award a new trial of the issue, on which so much of the said instruction as is herein pronounced to be erroneous is not to be repeated.