Tiffany v. Glover

Opinion by Kinney, J. Tiffany filed a petition under the code against Glover, claiming the following described tract or paree! of land, to-wit: The south-east quarter of section twenty-nine, in township seventy-one, north of range six west. The defendant, Glover, answered that he had title in fee simple to the lands mentioned. That on the first clay of January, 1849, at TIem-y county, he had a legal demand against one Winthrop Cheney, who was in possession of said land, and seized in fee of the same, and had all the title in law and equity, free from all legal incumbrance; that he derived his title from one Hulclah Cheney, by conveyance, executed on 27th day of June, 1843; that while tiie title so remained in said Winthrop, defendant sued out a writ of attachment against said Wintrop Cheney, his goods and chattels, lands and tenements, and th =.i — 388 — writ was, on the first day of January, 1849, by the sheriff duly levied upon said land, to satisfy a claim due defendant from said Cheney. That at the March term of the district court following, defendant, on the appearance of said "Winthrop, recovered a judgment of three hundred and eighty dollars, while the said writ of attachment was in full force upon said land; that in June, 1850, an execution issued on said judgment, and levied upon said land, which, after having been duly advertised, &c., was on the 15th day of August, 1850, struck off to defendant for three hundred and forty-one dollars, that being the highest and best bid; that a certificate of purchase was executed, and at the expiration of fifteen months, a sheriff’s deed was executed to the defendant. Defendant denies any title to the said land in the plaintiff, &c. The cause was submitted to the court upon issue joined between Tiffany and Glover, and, after hearing the evidence, the court decided that the plaintiff had no cause of action. From the bill of exceptions, taken.by Tiffany, it appears that both parties trace their title to Iluldah Cheney, who, it is agreed, had a good title, which was duly conveyed to Winthrop Cheney, from whom both claim to have derived tide; the plaintiff by virtue of a deed from Winthrop, purporting to have been executed on the first day of July, 1848, and filed for record on the twelfth day of February, 1849; and the defendant, by virtue of an attachment upon the land, judgment against Winthrop, levy and sale of the property in controversy. The proceedings in attachment to final judgment, sale, and sheriff’s deed, are all set out at length in the bill of exceptions. From these, it appea:s that the writ was issued on the first day of' January, 1849. Return, as follows: “January 2d, 1849, levied the within writ by attaching the south-east quarter of section twenty - nine, township 71, range six. Report of Appraisers: We, the undersigned, citizens of Henry county, possessing the — 389 — qualifications of jurors, having been summoned by W. S, Viney, sheriff of said county, to appraise the following property, levied on by him under and by virtue of said attachment, did, on the second day of January, 1849, -after being duly sworn by said sheriff, proceed to appraise the same as set forth, to-wit: the south-east quarter of section twenty-nine, township seventy-one, range six, at five hundred dollars. January 2, 1849.” Signed, Thomas Long, Samuel Wood, W. S. Yiney, sheriff; 11. O. ' • March term, 1849, parties appeared by their attorneys trial liad, verdict for plaintiff for three hundred and eighty dollars, and a general judgment in personam entered against Wentworth Cheney. Upon this, a general execution was issued on the 14th day of June, 1850, the land levied upon 18th June, 1850, and August loth, following, sold to Glover, and time of redemption having expired sheriff’s -deed ma.de 17th November, 1851. This deed was filed for record loth day of January, 1852. It is now contended, by the plaintiff, that the proceeding in attachment being in derogation of the common law, and the remedy a violent and extraordinary one, that it should be in strict conformity with the statute to give the court jurisdiction of the property attached, and that as'the levy upon the attachment was not according to the requirements of the statute, that the court acquired no jurisdiction over the land by virtue of the attachment levy. 2d. That as the ¡Plaintiff’s deed was upon record before judgment and seizure upon execution, that his. title is paramount to the defendants. These propositions are controverted by the defendant. But if true, it is claimed, that as the plaintiff’s deed was defectively acknowledged, there was no legal record of any deed from Cheney to Tiffany, and hence the defendant is an innocent purchaser without notice under a general judgment execution and sale. Th.e levy is claimed to be defective in this; that it does ziot appear, by the sheriff’s return, that the property — 390 — attached was the property of the defendant, nor does it appear that the writ was executed in the presence of two witnesses, as required by statute. The return of the officer, upon the writ, must constitute the foundation of all subsequent proceedings against the property under the attachment. It is only by the' return that the court is advised of the levy, and special judgment and execution can only be awarded uqoon a sufficient levy, and this must be ascertained by the officer’s return. The lien, arising by virtue of the levy, can only attach when the officer strictly complies with the requirements of the statute. The proceeding being in derogation of the common law, and of a violent character, it should affirmatively appear by the officer’s return, that the provisions of the statute had been strictly observed, as the jurisdiction of the court over the property depends entirely upon a legal levy. It is by virtue of the levy, authorized by statute, that the court proceeds to render judgment of condemnation against the property. If the levy is defective, the court, acting as a court of limited jurisdiction under a special and stringent statute, has no power to proceed against the land. In proceedings in attachment, the jurisdiction of the court is obtained by special authority, derived from the legislature, and hence the doctrine of presumption, as applicable to courts in the exercise of common law powers, cannot apply. In attachments, as we have said, it is the levy which confers jurisdiction, and if this appear defective it cannot be obviated by legal intendment, or covered by the favor usually extended to courts in the exercise of their ordinary jurisdiction. This first step, necessary to confer power upon the court to charge the land, must be correctly taken, or all subsequent proceedings under the attachment will be coram non judiee and void. In support of the correctness of the general propositions here asserted vide Marshall v. Marshall, 2 G. Greene, 242; Witkie et al. v. Jones, Morris Iowa R. 97; Martin v. — 391 — Dryden et al., 1 Gil. 212; Brown v. Bodwell, 4 Scam. 302; Clark v. Harkness, 1 Scam. 56. In Bates v. Merchant Bank, 8 Port. 99, it is expressly decided that where summary proceedings are given by statute, everything necessary to give the court jurisdiction must appear of record, and nothing will be taken by intendment. The same doctrine is held in Hamilton v. Burum, 3 Yerg. 365, where the following similar language is used: “Every'fact, necessary to give the court jurisdiction in a summary proceeding, must appear of record to give the judgment validity; if they do not appear the judgment is coram non judioe and void; vide Barry v. Patterson, 3 Humph. 313. Vide also, a very late case of Maples v. Tunis, 11 Humph. 108. In this case suit in attachment was instituted before a justice of the peace, land levied upon by virtue of the attachment, judgment on the attachment, execution issued thereon, and levied upon the land. The entire proceeding was then recorded in the circuit court, and an order of sale made; the land sold, and sheriff’s deed made to the purchaser. Ejectment is brought to recover possession of the hind. Objection is made to the validity of the sheriff’s deed, because the affidavit in the attachment was defective in not stating the cause for which the attachment issued. The court say that the affidavit forms a material part of the record, and that they are not precluded by the writ of attachment from talcing judicial notice of it. They farther say “that the attachment must be strictly construed, being in derogation of common law, and that it is therefore a settled rule, in a series of cases, that any material departure from the requirements of these statutes will vitiate the proceeding, and render it utterly void. In such case the judgment and sale are void, and communicate no title to the purchaser.” "We only refer to this case in extenso to show how very far a highly respectable court, as late as 1850, has gone upon this subject. The proceeding was collateral, and because the affidavit was defective, the — 392 — judgment and execution were declared void, and it was decided that the sale communicated no title. It is not necessary, in this case, to adopt the decision to its full extent, but we cite it as corroborative of the general doctrine of the books in attachment cases. This doctrine then being settled, it cannot be said that the court, in deciding the case between Glover and Cheney, in the attachment, decided in favor of the legality of the levy, and hence that, that is no longer an open question. The court, as we have said, in that proceeding was acting by virtue of a special jurisdiction, and that it rightfully acquired jurisdiction, and properly exorcised it, must appear upon the record. We have a right, then, to look through and behind the judgment of that court to the q>oint where its jurisdiction arose, and if we find that the data upon which it acted, were not sufficient to confer jurisdic tion, all subsequent proceedings are coram non yudice and void, and may be collaterally attacked whenever attempted to'be enforced. Looking into the proceedings then, in the attachment of Glover v. Cheney the case is narrowed down to this question: did the sheriff observe the requirements of the statute in making his levy ? The sheriff should have returned, that the property attached was attached as the property of the defendant. In no other way could the court legally know the fact, and not until this fact was before the court could the court proceed against’ the land, as the land of the defendant. If the property of the defendant was not attacítM, tíiéré was no lien, there was no levy; and as the fadttlíát it was attached as the property of defendant was fessontial to constitute a levy, such fact could not be established by extraneous evidence dehors the return. There is nothing in the officer’s return upon which the court could base" an oqiinion that the writ was levied upon the land of Cheney. The attachment and sheriff’s return become muniments of title. The source of title under attachment — 393 — can only be ascertained by the return upon the attachment. To this, must the court look in awarding special judgment and execution. If from this it cannot be ascertained whose property is attached, all further proceedings should cease. The sheriff, under the statute, is only authorized to attach the property of the defendant. It should appear affirmatively, upon his return, that in this particular he observed the statute. In attachment proceedings legal presumptions are not favored, and hence this omission cannot be supplied by intendment. Again, the statute requires that “ the officer to whom the writ of attachment is directed shall by virtue thereof, in presence of two citizens possessing the qualifications of jurors, attach any lands, tenements, &c., of said debtor. ” This does not appear to have been done by the sheriff. It constitutes a j>art of a legal levy and cannot be dispensed with. It is as necessary in order to a proper levy, that the officer should attach the land in the presence of two citizens possessing the requisite qualifications, as that he should aet at all in the premises. lie had no power to attach the land except in the ¡rrosence of such citizens, and the attachment is of no effect unless it appears by the return that the officer complied with this provision of the law. True he had the property appraised, but this was also necessary in addition to requirement of §§G vida It. S. p. ‘T8. § G, 1. But it is said that Cheney appeared in court, and that this cures defects. We do not understand from the record that he appeared to the attachment; but be tiffs jjg it may, his appearance could not make that av was no levj' at all, so as to defeat a titl which depended for its validity upon t| the attachment levy. Cheney could nj sell land, pocket the money, and then bj a third person of his rights, and make his debts. The court rendered a general jifc Cheney. But in this case of Tiffany v. Glover, it must — 394 — have decided that the lien upon the land dated from the. time the attachment was levied. In this way it has been presented to us and so we understand it. If Tiffany has a deed properly executed and acknowledged, in no other manner could it have been defeated by the court below, as it was filed for record before the judgment against Cheney was obtained. The objection made to Tiffany’s deed is, that it is defectively acknowledged, and that the record of a deed thus acknowledged would not impart notice to a subsequent bona fide purchaser without actual notice. The officer states that before him personally appeared the within Winthrop Cheney and acknowledged the signing and sealing of the within to be his voluntary act and deed for the purposes therein expressed. He also certifies that said Winthrop is personally known to him to be the person who signed and sealed the foregoing instrument of writing-It is claimed that the officer should certify that Cheney was personally known to be the person whose nHhie is subscribed to the deed as “ party thereto,” and we are referred to §§ 10,11 of li. S., p. 205. The certificate of acknowledgment is not in the precise words of the statute, the object of which is to prevent one individual from personating another. But wo think the object and intent of the statute are fully observed by the officer, and the certificate substantially correct. The certificate states that the within Winthrop Cheney, &c. This must mean the Winthrop Cheney who is described in the deed as “party thereto.” It cannot convey any other idea. If the officer had certified that, personally appeared before him Winthrop Cheney, who was known to be the person described in the said deed as grantor, it would only have been explanatory of the word “ within.” If the certificate had read instead of “ within,” a person purporting to be the within Wintlirop Cheney, then the position taken would be tenable. Understanding the force of the word within as used by the — 395 — officer, the certificate of identity is sufficient. “ Said Winthrop is personally known to be the person, &c.,” that is, ¿As Winthrop described in the within deed is personally known to be the person who signed and sealed the said instrument of writing. We cannot but regard the certificate of acknowledgment as substantially correct. We have never held, in giving construction to acknowledgments, that the literal language of the statute should be adopted by the officer, but that it is sufficient if he employs words of the same import and force, as has been done in the case before us. The conclusions which we arrive at in this cause are, first, that the attachment proceeding being in derogation of the common law, by virtue of a special statute summary and extraordinary, that the court was therefore quo acl hoo a court of limited jurisdiction. Second, that jurisdiction will not be presumed, but that the facts -which gave jurisdiction should appear upon the face of the proceedings. Third, that the attachment proceedings in the case of Glover v. Cheney may be inquired into collaterally and if it appear from the record that the court did not acquire jurisdiction over the land of Ohenev by a proper levy, such levy will be declared void. Fourth, that as the Sheriff did not comply with the requirements of tire statute in making his levy, as appears from his return, Glover acquired no limi by virtue thereof upon the land of Cheney, and hence Tiffany’s deed being executed and recorded before final judgment must have seniority. Lastly, that the acknowledgment of the deed from Cheney to Tiffany is good in law, and the record of said deed imported notice to Glover who purchased the same land at the Sheriff’s sale. The court erred in deciding that Tiffany had no cause of action. The questions involved in this case being of the utmost importance must be our apology for the time devoted to tlieir consideration in this opinion. Judgment reversed-