Page:Federal Reporter, 1st Series, Volume 2.djvu/283

 276 FŒDEEAL BEPOBTEB. �like the present, a case where the judgment had been paid except certain costs, and the sheriffs to whom the coats were due undertook to sell property on execution for the purpoae of coUecting them. The court said : "It is not denied that the judgment was satisfied before the sale (except as to the sheriff's fees on the execution) by a settlement between the parties. * * • * * The sheriff had no right to sell for the purpose of collecting his fees after due notice of the settlement and discharge of the judgment. The sheriff has no interest ia the judgment which will authorize him to inter- fere with or control any settlement or agreement which the parties may think proper to make. His fees are no part of the judgment. They are but an incident to it, and if the judgment itself is satisfied or discharged he must look to the plaintiff and his attorney for his fees. He cannot collect them from defendant by a sale of his property." And it was held that the purchaser at the sale in that case took nothing. To the same efïect see Lewis v. Phillips, 17 Ind. 108, and Hampton Ex parte, 2 Gr. (lowa,) 137. �In the absence of statutory regulation the clerk has no authority to issue execution without the direction of the plaintiff or his attorney. Herman on Executions, 66. Thia must be upon the ground that the clerk is not a party to th© judgment, and has no control over it. �It is said in answer to these suggestions that Chandler ob- tairied authority from the attorney of the judgment plaintiff to issue the execution. If this be so, it does not help the de- fence, because that attorney had previously given Kellogg a satisfaction in full of the judgment, upon which satisfaction the latter was relying for the security of bis title. To say that the attorney for the judgment plaintiff could execute a valid release to Kellogg, and then, without notice to him, cancel it, and authorize Chandler to issue execution and sell Kel- logg's land, would be to sanction a gross fraud. �In selling property under an execution a sheriff aots by Tirtue of a power, and if the power does not exist no title passes. Carpenter v. Stilwell, 11 Kernan, Cl; Laval v. Row ley, 17 Ind. 36. ����