Page:Federal Reporter, 1st Series, Volume 4.djvu/609

 fiTEEfiSI V. SAÏTISIi. 695 �ihese facls îiiubI le held to modify that dominîon and^ con- trol -which the officer must keep up. Id. § 262a, 263, 280. �In England an assignment of the term was necessary to complete the sale, because of the statute of frauds, and with- out it the sale was void. Everywhere it was held that 'the purchaser must bring his ejectment to.obtain possession. It- was so under the statute of elegit, -which commanded the sheriff to deliver ail the goods and chattels and one-half the lands to the plaintiff. And it was so under the levari facias. Under the elegit, the plaintiff could treat the leasehold either as chattels, and take the whole at a price, or as lands, and take one-half by extent, The sheriff could enter, if he found the gates and door open, to hold his inquisition, but for no other purpose. If he delivered the term as chattels, or ex- tended one-half as lands, ail the tenant, by elegit, could do was to bring ejectment. So, under the fieri facias, ail the sheriff did was to sell and assign the term, and the purchaser was put to his ejectment to obtain possession. There was one exception only to this, and that was, if the execution debtor consented to surrender possession the sheriff might put his purchaser and assignee in possession under the Ji. fa. ; but he could not do this by force. If he happened to find the tenant absent he could not seize the possession against his will, for that would be taking forcible possession, which was not allowed. Perhaps the purchaser, if he could get possession, might, relying on his title, retain it under such circumstances, but this principle would not authorize the sheriff to eject the debtor, Watson, Sheriff, 178, 188, 206, 212, (5 Law Library, 128, seq.;) Sewell, Sheriff, 226, (36 Law Library, 175;) 2 Saund. 68, 70, 3 Bac. Ab. tit. "Execution," e. e, p. 699, (Bouvier's Ed. A. D. 1860;) Id. c. 2 p. 688; 5 Id. tit. "Leases," p. 433; Taylor's Landlord and Tenant, § 435; Tlie King v. Dean, 2 Show. 88; Taylor v. Cole, 3 T. E. 292; James v. Brawn, 5 B. & Aid. 243, (7 E. C. L. 83;) Hughee v. Jones, 9 Mees. & Wels. 372; Playfair v. Musgrove, 14 Mees. & Wels. 239; Rogers v. Pitcher, 6 Taunt. 207; and see Por- ter V. Cocke, Peck E. 34, (Tenn.) �î am of opinion, therefore, that, in making a levy on a ����