Doe on the demise of Murphy v. Hayes

Stuart, J. The case was submitted to the Court; finding and judgment for the lessees^ of the plaintiff. It appears from an agreed state of facts, that on the 27th of August, 1841, Jesse Scott, recovered judgment, by confession, for 200 dollars, on a note dated June 18,1840, against Lockhart and others. At the time of the recovery, Lockhart was the owner in fee of the land in controversy. On the 5th of. August, 1842, a fi. fa. issued on the judgment, was levied on the tract of land in question, as the property of Lockhart, and was returned without sale, by order of the plaintiff, Scott. In March, 1844, an alias fi. fa. was issued, which was also levied on the same tract of land, and returned no sale for want of bidders. In March, 1844, Jesse Scott, the execution-plaintiff, died; and in September, 1845, a venditioni exponas issued, reciting the first Ji.. fa. and the sheriff’s levy and return thereon, and directing the officer to sell, &c. At this point there is great confusion of dates in the “ agreed case.” The sale to the Murphys is stated to be in October, 1847, the return of the sheriff in July, 1847, and the deed to the purchasers in May, 1846. We may still presume that the sale, the deed, and the return, followed each other in proper succession. The sheriff’s deed to the Murphys was recorded in May, 1846. These proceedings under the Scott judgment, constitute the chain of title on the one side. On the other, it appeared that in August, 1842, a year after the recovery of the Scott judgment, Lockhart mortgaged the land in dispute, together with other lands, to Hayes and Ferris. From this mortgage the defendants trace their title. It is not necessary to state the several steps of foreclosure, &c. The priority of the lien of the Scott judgment does not admit of controversy. The issuing an alias fi. fa. while the levy under the first execution was undisposed of, might be an irregularity—perhaps a nullity; but could not affect the lien of the judgment. 1 Ohio R. 458. The lien remains until the judgment is satisfied, or the property bound by it is disposed of. The only remaining question relates to the sale on the [119] venditioni exponas, after the death of the execution-plaintiff. A fi. fa. levied on land in the lifetime of the execution-defendant, may be proceeded in, and the land sold after his death. Wolf v. Heath. 7 Blackf. 154. So if the execution-plaintiff die after the issuing of a fi. fa., the writ may still be executed. Murray v. Buchanan, 7 Blackf. 549. The rule to be deduced from these decisions is, that when the execution of the writ is begun in the lifetime of a sole plaintiff or sole defendant, the officer may complete it after the death of either party. The sale in the present case, though on a venditioni exponas issued after the death of Scott, comes fairly within the rule. For the vendi. is only the execution of what had been left to be done under the fi. fa. It is not a new command to levy, but only to dispose of a levy already made. The officer is ordered to complete, under the vendi., what he power of the officer under the vendi. commences precisely where his action under the fi. fa. ceased. “ These two writs are, in fact, but one writ—the one designed to compíete what the other had commenced.” V had begun under the fi. fa. The vendi. relates the fi. fa., and to the proceedings had thereon^I D. Macy and T. A. Hendricks, for the plaintiff. J. Morrison and S. Major, for the defendants. We therefore conclude that the vendi., in this inst was properly issued and executed after the death of Scott. We cannot see any distinction, nor any good reason why we should seek to distinguish between the case at bar and those cited. In some of the states a different rule prevails, perhaps growing out of statutory provisions. Per Curiam. The judgment is affirmed with costs.