McClure v. Engelhardt

Scates, C. J. At the time of the levy of this execution, Shores appears to have been in possession of the premises, and owned an equity of redemption—both of which were subject to levy and sale under it. Acts 1841, 171, Sec. 7; Rev. Stat. 1845, p. 300, Sec. 1. Switzer et al. v. Skiles et al., 3 Gil. R. 532, 533; Turney et al. v. Saunders et al., 4 Scam. R. 532; Jackson ex dem. Stone v. Scott, 18 John. R. 94; Jackson v. Parker, 9 Cow. R. 80, 84, 85. Judgments were not liens upon lands at the common law, because lands were not liable to sale, but levies were liens, upon such property as was liable to be taken and sold. By statute, the delivery of execution to the officer was made to operate as alien. We have modified the English rule, by subjecting the land to sale, creating a judgment lien on that in the same county of the judgment, and adopting the English statute in relation to liens on personalty by delivery of the execution. Lands in foreign counties to the judgment were subject to levy and sale, although the judgment itself did not operate as a lien. Without assuming that the delivery of the execution to the officer of a foreign county, would, by analogy, operate as a lien on the land, like the personalty, because it was liable to be taken. We cannot question but that the levy would so operate from its date, and a sale in pursuance of such levy would perfect the title by relation back to the levy. Fair purchasers were liable to be overreached by these semi-secret liens, without any official mode of notice or of obtaining it. To remedy this evil, the legislature provided that the certificate of levy and sale, should each be filed in the recorder’s office of the county where the lands lay, and so also of levies of attachments. Rev. Stat. 1845, p. 302, Sec. 12, p. 305, Secs. 25, 26, 27; (see act 1841, p. 170, Sec. 4,) and in each case to take effect as alien from such filing, as to creditors and bona fide purchasers, without notice. The certificate of levy in this case was not filed, and therefore took no effect as a lien by constructive notice, and creditors and subsequent purchasers, without actual notice, might have held the land against this levy. But no such right intervened between the levy and sale. The certificate of sale was filed, and was constructive notice from that day. This was before any conveyance back to the judgment debtor by his mortgagees, and is sufficient to pass to the purchaser all the interest of the judgment debtor, and with notice of the levy and judgment as well as of the sale. We cannot construe the statute requiring the filing of the certificate of levy, as defeating the title acquired by the sale and certificate duly filed on account of a failure to make the levy a lien by recording it, The only effect of the failure would be to subject the levy to be set aside, and a subsequent sale defeated, by an innocent intervening creditor or purchaser. But if none such intervene, the levy is not void, but is good to support the sale, and when that is duly made and certificate filed, it will take effect as an independent notice, and connection with the judgment through the unrecorded levy, as if the levy had never been required to he recorded. Such is the title set up and shown here, which appears to ns sufficient to entitle the plaintiff to a verdict and judgment in this case, for anything shown in proof in this record. It is contended that defendant claims under the same grantor, Shores., and. is therefore estopped to deny title in him, or set up an adverse title in himself, or third person. So the rule is laid down, 1 Greenl. Ev. p. 306, Sec. 307; Bancroft v. White, 1 Cains Rep. 190, and note a; Jackson ex dem. Masten v. Bush, 10 John. R. 223; Jackson ex dem. Bowne v. Hinman, id. 292; Ferguson v. Miles, 3 Gil. R. 365; McConnell v. Johnson, 2 Scam. R. 528. But the fact seems to have been overlooked by the plaintiff, that he, and not the defendant, claimed title for defendant, and deduced it from Shores. Defendant offered to show title in the mortgagees, and there rested the question, contenting himself upon objections to plaintiff’s title, and without setting up any in himself. We should, therefore, notice one or two.more objections to plaintiff’s title. It is said the judgment was against one man, and the execution was levied upon the property of another. The answer is, that the evidence of identity is sufficient and satisfactory. Again, that the sale was to Bailey, the attorney of the judgment creditor, and the certificate of purchase was assigned by the latter. The proofs and circumstances satisfy us abundantly, that the purchase was for and by the creditor, through his attorney of record. Upon these proofs the court would not feel authorized to render a judgment against Bailey as a purchaser, and compel him to pay the creditor for this land. This certificate was assignable by the statute. The title might well pass, under such a defective assignment as would not enable the holder to compel the officer to execute a deed; yet he may do so, and it will be good. It is not a question in which the judgment debtor has any interest; having neglected to redeem, his title has passed; and, as to him, it is not material as to whom it is conveyed. Wiley et al. v. Bean et al., 1 Gil. R. 305. See Garrett v. Wiggins, 1 Scam. R. 335; Voorhees v. The Bank U. States, 10 Pet. R. 478. It was contended that this doctrine would enable sheriffs to convey the land to whom they pleased, in fraud of those having right. When such an attempt is made, and shown to the court, a proper remedy and corrective will be found and applied. This does not present such an one. A very simple punctuation after the word attorney, will make it read plainly as the parties understood and acted upon it; that is, that the land was struck off to S. G. Bailey, attorney, for plaintiff in execution. Accordingly he passed over the certificate to his client, as purchaser, and he assigned it to the plaintiff here, to whom the sheriff conveyed. If the defendant has any title, he should have presented it. So far as any appears in the record, we are of opinion with the plaintiff. Judgment reversed and cause remanded for new trial. Judgment reversed.