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WASHINGTON AND SANDERS TAYLOR, PLAINTIFFS IN ERROR, v. JOHN DOE

December 1, 1851

WASHINGTON AND SANDERS TAYLOR, PLAINTIFFS IN ERROR,
v.
JOHN DOE, EX DEM. AUSTIN MILLER.



THIS case was brought up, by writ of error, from the District Court of the United States for the Northern District of Mississippi. It was an ejectment, brought in the court below by Miller, against the Taylors, who were the purchasers of the property in question at a sheriff's sale. The controversy was respecting the validity of the sale, the circumstances attending which are detailed in the opinion of the court. The following table shows the date of the various transactions. Crane was the owner, and in possession of the property. September 21, 1840, Crane made a deed of trust to Pitser Miller. November 17, 1840, a judgment was given against Crane, at the suit of some third person, for $6000, in the Circuit Court of the county of Marshall. Upon this judgment a fieri facias was issued, returnable to the first Monday in June, 1841. December 7, 1840, the deed from Crane to Pitser Miller was recorded. April 16, 1841, the execution was levied upon the land in controversy. Whereupon Crane claimed the benefit of the valuation law of Mississippi. The property was valued at six thousand dollars, but two thirds not being bid, the papers were returned to the clerk's office. February 20, 1842, Crane died. May 30, 1842, twelve months after the return of the papers, a writ of venditioni exponas, tested on the first Monday in March, 1842, was issued, commanding the sheriff to sell the land. August 17, 1842, the sheriff sold the land to the Taylors; and on the same day made them a deed for it and put them in possession. April 20, 1843, Pitser Miller put up the land for sale under the deed of trust from Crane, when Austin Miller became the purchaser, and received a deed from the trustee. In October, 1847, Miller brought his action of ejectment against the Taylors in the District Court of the United States for the Northern District of Mississippi, Miller being a citizen of the State of Tennessee. In December, 1849, the cause came on for trial. On the foregoing facts, which were established by legal testimony, the court charged the jury, that if they believed, from the evidence in the case, that the venditioni exponas, by virtue of which the land in controversy was sold, and under which the defendants became purchasers thereof, was issued and tested after the death of said William Crane, and without a revival of the judgment by scire facias, then such sale and purchase were void, and conferred no title on defendants. The defendants excepted and brought the case up to this court. It was argued by Mr. Volney E. Howard, for the plaintiffs in error, and by Mr. Vinton and Mr. Stanton, for the defendants in error.

The opinion of the court was delivered by: Mr. Justice Daniel delivered the opinion of the court.

Mr. Howard, for plaintiffs in error.

The only question involved in this case is, whether an execution sale is void when the party defendant died before the test of the venditioni exponas, and the judgment was not revived by scire facias.

1. A judgment in Mississippi is a lien upon all property from the date of its rendition. In this case the judgment was rendered previous to the conveyance, and the purchaser took it subject to the lien and the right of the judgment creditor to sell. Pickens v. Marlow, 2 S. & M. 428; 3 Id. 67; 9 Id. 9.

2. Sheriffs' sales in Mississippi, under executions issued after the death of the defendant, and without revival by scire facias, have always been held only voidable, and not void, and therefore sustained in actions of ejectment. Smith et al. v. Winston et al. 2 How. Miss. R. 607; 5 How. Miss. R. 256; 9 Smedes & M. 218.

3. This being an important property rule in Mississippi in relation to real estate, it is submitted, that this court, under its former decisions, will follow the interpretation of the Supreme Court of Mississippi, especially the late case of Shelton v. Hamilton, which is printed as part of this brief, so far as it relates to this principle, and the certified manuscript copy, herewith filed. 5 Cranch, 22; 2 Crahch, 87; 1 Wheat. 27; 2 Wheat. 316; 10 Wheat. 152; 12 Wheat. 153; 4 Peters, 127; 5 Id. 151.

The counsel for the defendants in error contended, that the decisions are uniform and almost uninterrupted, to the effect that a levy on real estate does not divest the title of the judgment debtor, or satisfy the execution, as in the case of a levy on personal goods. The land, therefore, descends to the heir in spite of the levy; and in order to subject it by a process tested after the death of the ancestor, the heir must be made a party by scire facias. Erwin's Lessee v. Dundas et al. 4 How. Sup. Ct. R. 58; 6 Ala. Rep. 658; 2 How. Miss. R. 601; 5 Id. 629; Davis v. Helm, 3 S. & M. 17; Smith v. Walker, 10 Id. 589; 3 Ala. 204; 7 Id. 660.

The writ of venditioni exponas is a proceeding in personam, not in rem. It must have persons for parties. Against a dead man it is wholly void. Gwin v. Latimer, 4 Yerger, 22; Overton v. Perkins, 10 Id. 328; Rutherford v. Reed, 6 Humph. 423; Samuels v. Jackery, 4 Iredell, 377; Baden v. McKeene, 4 Hawks, 279; Woodcock v. Bennett, 1 Cowen, 711; Stymets v. Brooks, 10 Wendell, 206.

In Hughes v. Rees, 4 Meeson & Welsby, 468, the court say the venditioni exponas is 'part of the fieri facias,' 'a species of fieri facias,' 'a writ directing the sheriff to execute the fieri facias in a particular manner.'

The act of 1840, called the valuation law of Mississippi, did not alter these principles. It enacted, that if lands levied on would not sell for two thirds of their appraised value, the sheriff should return the fieri facias, with all proceedings, to the court; and if the judgment should not be satisfied after twelve months, a venditioni exponas should issue. The sheriff is not authorized to sell without this new process. It is the writ alone which vests in that officer the power to sell and convey lands. Natchez Ins. Co. v. Helm, 13 Smedes & Marsh. 182.

The cases in Peck's Rep. 80; 4 Bibb, 345, and 2 Bay, 120, quoted as being opposed to the foregoing authorities, are not in fact such. The case of Toomer v. Purky, 1 Constitutional R. 323, would seem to be in opposition to the current of authorities; but it must be regarded as having been decided without due consideration.

This was an action of ejectment, instituted in the court below by the plaintiff, a citizen and inhabitant of the State of Tennessee, against the defendants, citizens and inhabitants of the State of Mississippi; and the facts proved in the cause and about which there appears to have been no contrariety of opinion, were to the following effect. That the plaintiff and the defendants derived their titles from one William Crane, who was at one time seized and possessed of the demised premises. That being so seized and possessed, Crane conveyed the land, on the 21st of September, 1840, to one Pitser Miller, for the purpose of securing a debt in said conveyance mentioned; that this deed from Crane, after having been proved, was delivered to the probate clerk of the county wherein the land was situated, on the 7th day of December, 1840, and was on that day recorded. That this land was afterwards duly advertised for sale under the trust above metioned, was regularly sold in pursuance thereof, by the trustee, on the 20th day of April, 1843, to the lessor of the plaintiff, for the sum of $1,000, and conveyed to him by the trustee by deed which was acknowledged and recorded on the day and in the year last mentioned. That the defendants were in possession of the demised premises at the commencement of this action, and that the land in dispute was worth $4,000.

The defendants then proved, that on the 17th of November, 1840, a judgment was recovered in the Circuit Court of the county in which the demised premises are situated, against the said Crane, for the sum of $6,000; that, on this judgment, an execution was sued out against the goods and chattels, lands and tenements, of the said Crane, returnable to the 1st Monday in June, 1841, which execution, on the same day on which it was sued, came to the hands of the sheriff of the county, and was by him levied on the land in controversy on the 16th of April, 1841. That thereupon the said Crane claimed the benefit of the valuation law of Mississippi, and in pursuance of that law, the land was valued at six thousand dollars, and that being after such valuation advertised and offered for sale, and two thirds of the appraised value not having been offered for the said land, the execution and papers connected therewith were returned to the clerk's office of the court of the county, according to law; that after the expiration of twelve months, viz., on the 30th of May, 1842, a writ of venditioni exponas, tested on the 1st Monday in March, 1842, was sued out by the clerk of the county aforesaid, directed to the sheriff of said county, commanding him to sell the land which had been levied upon, and on which the appraisement and suspension had been taken, as before set out; that, by virtue of this writ of venditioni exponas, the said sheriff, after duly advertising the land, sold the same on the 17th day of August, 1842, when the defendants became the purchasers thereof, at the price of $800, and having paid the purchase-money, the sheriff conveyed to them the said land by a deed in due form of law, which was acknowledged and recorded on the 17th of August, 1842, the date of the said deed; that under this deed the defendants were in possession of, and claimed title to, the land in question.

The plaintiffs' lessor then proved that Crane, upon an execution against whom the land had been seized, and at whose instance that execution had been stayed under the provisions of the statute, departed this life on the 20th of February, 1842, during the twelve months' suspension of the proceedings on that process, and before the test and suing out of the ...


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