Lessee of Doolittle v. Bryan

THIS case came up from the Circuit Court of the United States for the District of Ohio, on a certificate of division in opinion between the Judges thereof.

The following was the entire record in the case:

THE UNITED STATES OF AMERICA,

District of Ohio, ss.

At a Circuit Court of the United States, for the District of Ohio, began and held at the city of Columbus, in said district, on the third Tuesday in the month of October, in the year of our Lord one thousand eight hundred and fifty-one, and of the independence of the United States of America the 76th, before the Honorable John McLean and the Honorable Humphrey H. Leavitt, Judges of said court; among other proceedings had, were the following, to wit:

The lessee of IRWIN B. DOOLITTLE et al. }

v. }

LEVI BRYAN et al.      }

In ejectment.

In this case, the lessors of the plaintiff, being citizens of Illinois, brought their action of ejectment to recover possession of one thousand acres of land in the State of Ohio; the declaration being duly served on the tenants in possession, they appeared and entered into the consent rule, and filed the general issue. On the trial, two points arose, on which the opinions of the Judges were opposed, to wit:1. Whether a sale of land by a marshal, on a venditioni exponas, after he is removed from office, and a new marshal appointed and qualified, is void?

2. Whether such sale, being returned to the court, and confirmed by it on motion, and a deed ordered to be made to the purchaser, at the sale, by the new marshal, such sale being made, is valid?

And the counsel for the lessors of the plaintiff, moved the court to certify the above points, for decision, to the Supreme Court, under the statute.

The practice to confirm the marshal's sale, is under the fifteenth section of the State statute 'regulating judgments and executions,' and is as follows:

'That if the court to which any writ of execution shall be returned by the officer, for the satisfaction of which any lands or tenements may have been sold, shall, after having carefully examined the proceedings of such officer, be satisfied that the sale has, in all respects, been made in conformity to the provisions of this act, they shall direct their clerk to make an entry thereof on the journal, that the court are satisfied with the legality of such sale, and an order that the said officer make to the purchaser a deed for such lands and tenements.'

October 27, 1851.

From the arguments of counsel, the following appeared to be the dates of the several transactions.

On the 19th of February, 1829, a venditioni exponas came to the hands of William Dougherty, then the marshal of Ohio. The writ was returnable to the July term, 1829.

On the 20th of April, 1829, Dougherty was removed from office.

On the 11th of May, 1829, John Patterson was qualified as marshal.

On the 10th of July, 1829, Dougherty sold the land in question.

At the July term, 1829, the writ of venditioni exponas was returned, by which it appeared that the land was sold to Levi Bryan, one of the defendants. The sale was confirmed by the court, and Patterson, the then marshal, ordered to convey the land to Bryan, the purchaser.

The counsel upon both sides agreed that the plaintiffs in ejectment could not recover unless this was a void sale.

It was argued by Mr. Stanberry, for the plaintiffs, and Mr. Corwin, for the defendant.

Mr. Justice GRIER delivered the opinion of the court.