Insurance Co. v. Hallock

Mr. Justice MILLER delivered the opinion of the court. If the paper here called an order of sale is to be treated as a writ of execution or fieri facias issued to the sheriff, or as a process of any kind issued from the court, which the law required to be issued under the seal of the court, there can be no question that it was void, and conferred no authority upon the officer to sell the land. The authorities are uniform that all process issuing from a court, which by law authenticates such process with its seal, is void if issued without a seal. Counsel for plaintiffs in error have not cited a single ease to the contrary, nor have our own researches discovered one. We have decided in this court that a writ of error is void for want of a seal, though the clerk had returned the transcript in obedience to the writ. ‡ *559 We have held that a bill of exceptions must be under the seal of the judge. * It is true that the paper now under consideration is not an ordinary fieri facias, nor is it any other common-law writ. It may be well, therefore, to consider what is its relation to the writ of fieri facias, and especially whether it was essential to the authority of the sheriff to make the sale. That the ordinary writ offieri facias is the authority of the sheriff to levy on property and sell it is undoubted, and needs no reference to authorities to support it; and if the supposed writ is void, then the levy and sale are also void, and not merely voidable, because they are made without any authority on the part of the officer. The decisions cited by counsel are all cases where process was issued irregularly, in point of time, or where the officer has not proceeded according to some statutory requirement which was directory to him, but did not affect his power to sell. But if his power to sell depends upon a process, and that process shows on its face that it is void, it can confer no authority, and all his proceedings uuder it are simply void. The question then recurs, did the authority of the sheriff to make the sale on which plaintiffs in error rely, depend upon the order of sale issued by the'Court of Common Pleas ? In courts which pursue the chancery practice in foreclosing mortgages, unaffected by statutory provisions, the sale is made by a commissioner appointed by the court. This is usually one of the standing master commissioners of the court, or, for reasons shown, some special commissioner for that purpose. In neither ease does any process or order under seal of the court issue to the commissioner. He may, if he thinks proper, procure a copy of the decree and order appointing him commissioner, or if the party who -wishes *560 the decree executed thinks proper in this mode to demand of him to proceed, he may furnish him such copy. But it is believed that the decree itself is the authority on which the commissioner acts, and if he proceeds in conformity to the decree, the sale will be valid although no copy has been placed in the hands of the commissioner. In the courts of Indiaua the distinction between common law and chancery proceedings is abolished, and under their code of civil procedure but one form of action, called a civil action, is known. This code provides, § 407, that “ when a judgment requires the payment of money, or the delivery of real or personal property, the same may be enforced by execution.” Section 409 says, “The execution must issue in the name of the State, and be directed to the sheriff of the county, sealed with the seal, and attested by the clerk of the court.” Section 635, which relates to the proceedings to foreclose a mortgage, we give verbatim : “A copy of the order of sale, and judgment, shall be issued and certified by the clerk, under the seal of the court, to the sheriff, who shall thereupon proceed to sell the mortgaged premises, or so much thereof as may be necessary to satisfy the judgment, interest, and costs, as upon execution; and if any part of the judgment, interest, and costs remain unsatisfied, the sheriff shall forwith proceed to levy the residue of the other .property of the defendant.” Though the order of sale here described may not come under the name of any of the recognized common law writs of execution, as capias, fieri facias, or others, yet it comes cleariy within the function and supplies the purpose of an execution — that is, a process issuing from a court to enforce its judgment. The statute recognizes it as such, and requires that it shall issue under the seal of the court. The sheriff to whom it is directed is required to proceed “as upon execution.” If the debt is not satisfied by the sale of the property specifically mentioned in the order, it then operates as a fieri facias, under which the sheriff is directed to levy the residue of any *561 other property of the defendant. It is therefore to all intents and purposes an execution, and the statute expressly requires that it must issue under the seal of the court. Without the seal it is void. We cannot distinguish it from any other writ or process in this particular. It is equally clear that under the Indiana statute the sherifl could not sell without this order, certified under the seal of the court, and placed in his hands. This is his authority, and if it is for any reason void, his acts purporting to be done under it are also void. Judgment affirmed. Footnotes [‡] Overton v. Check, 22 Howard, 46. [*] Pomeroy’s Lessee v. Bank of Indiana, 1 Wallace, 592 ; and see Boal’s Lessee v. King, 6 Ohio, 11; Bybee v. Ashby, 2 Gilman, 157; Tibbetts v. Shaw, 19 Maine, 204; Witherill v. Randall, 30 Id. 170; State v. Curtis, 1 Hayward, 471 ; Hall v. Jones, 9 Pickering, 446.