Taylor v. Doe

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.

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.

Mr. Justice DANIEL delivered the opinion of the court.