author: *By the Court :

text:
    *Lessee of Bisbee v. Harvey Hall.
    On injunction to stay execution after levy on chattels, sheriff bound to restore chattels levied on to the owner.
    Where sheriff sells land on execution, and purchaser refuses to pay money, the sheriff is not bound to make himself liable, and sue purchaser.
    Before the law of 1824, assignment of a lease tested by one witness was good.
    Party putting a witness upon his voir dire as to interest, can not afterward except to him.
    Leases between individuals for ninety-nine years may be sold in execution as chattels.
    This cause was adjourned from Hamilton county, and came before the court upon a motion for a new trial, made by the defendant.
    On the trial, the plaintiff, to deduce title to himself from Adam Moore, made when both parties claimed, gave in evidence a lease from A. Moore to Joseph B. Robinson, for ninety-nine years, reserving a yearly rent, with clauses of' re-entry for non-payment of the rent; with an assignment, indorsed on the back, from Robinson to T. Levinsworth, attested by one witness only. A judgment in favor of Ethan Stone, for the use of the Bank of Cincinnati, against H. Flint, David Thatcher, Seth M. Levinsworth, and James H. Looker, for two thousand one hundred and thirty-five dollars and forty-three cents, rendered at the May term, 1816, and connected with this a ft. fa. et. lev. fa. execution to November term, 1816, directed to Hosbrook, then sheriff, but he having gone out of office, the writ came into the hands of the coroner, who makes the following return: “ I have levied on a farm as the property of Hezekiah Flint, lying near Mill creek, and about two miles from its mouth, containing eighty acres, or thereabouts, binding on the north by Thomas Graham, on the east by land owned by David E, Wade and the heirs of William Betts, on the south by the land owned by the heirs of Israel Ludlow, and on the west by Jacob Bur-net and-Coleman ; it being the whole of said farm, claimed and owned by said Flint. November 22, 1816. Wm. Butler, coroner.’'
    A venditioni exponas to March term, 1817, which is returned by the coroner, indorsed “ March 29, 1817 : The within described farm, was bid off to Robert Boal, as agent for John H. Piatt, and the articles of sale not being complied with, the property remains on hand for want of buyers.”
    At the return term of the last writ, an entry was made oh the minutes of the common pleas (and was in evidence) in the following words: “ Ethan Stone, for the use, etc. v. Hezekiah Flint, and others. On motion, by W. Corry and I. G-. Burnet, to set aside execution; motion granted, and execution set aside in this cause, March 27, 1817.”
    *A fi. fa. et lev. fa. to July term, 1817, which was returned by the sheriff indorsed in the following words : “ Stayed by a writ of injunction after a levy had been made on personal property to wit, a small stock of merchandise, the right to which was claimed by Samuel P. Anthony, which was tried by ajury of five freeholders (naming them), who adjudged the right of said property to be in, David Thatcher; the said property was advertised for sale, and before sale redelivered to the within-named D. Thatcher.”
    An alias fi. fa. et lev. fa. to September term, 1819, returned indorsed as follows: “August 4, 1819, levied on part of lot No. 167, at the corner of Walnut and Fifth streets, being fifty feet in front on Walnut street, and one hundred feet deep on Fifth street, with the improvements thereon. The right and title of Seth M. Levinsworth is intended to be taken, which is a lease for ninety-nine years, subject to a ground rent of one hundred and fifty dollars per annum. Not sold for want of bidders.”
    A venditioni exponas to December term, 1819, returned indorsed as follows': “ November 3,1819. I have this day offered the within property for sale, at outcry, or auction, and sold it to Samuel R. Allen for the sum of one thousand and fifty dollars, which money has not been received, the said-refusing to comply with the terms of sale.”
    An alias venditioni exponas to April term, 1820, returned indorsed: as follows : “ April 4, 1820. I have this day sold the within described property, at public auction, to Ira White, for the sum of one hundred and seventy dollars, no person bidding more.”
    The plaintiff then gave in evidence a deed from Richard Ayres,, sheriff, to Ira White, dated May 16, 1820, for the property in question. Also, a'deed from White to Bisbee, the lessor of plaintiff,, dated December 25, 1824, containing a covenant to warrant and defend the premises against all persons claiming under him.
    The plaintiff having closed his testimony, the defendant moved the court to overrule it, as insufficient to show title in his lessor. This motion the court refused to sustain. The defendant then gave in evidence a lease from Adam Moore, for the same premises, for ninety-nine years, dated January, 1825; together with proof that Adam Moore had *duly entered for the non-payment of rent, and enforced the forfeiture. To rebut which proof, the plaintiff offered in evidence Ira White, the grantor to their lessor. The defendant objected, but the court overruled the objection.
    The defendant then caused Ira White to be sworn on his voir dire, and again objected to his competence, and the motion was again overruled, and White examined. The jury found a verdict for the plaintiff, and the defendant moved for a new trial, on the grounds that the court erred: 1. In not overruling the evidence offered by the plaintiff. . 2. That the court erred in admitting Ira White as a witness. 3. That the verdict was against evidence.
    Fox, in support of the motion:
    We insist that a new trial ought to be granted, because the plaintiff showed no title in himself. 1. Because it appeared in evidence that there was a levy made on real estate in 1816, which levy had not been disposed of at the time of the levy and sale of the property in dispute. This point, we contend, is decided by this court, in the case of Arnold v. Fuller’s heirs, 1 Ohio, 466, in which case an execution had been issued and levied, and before sale proceedings were stayed by a writ of error and supersedeas, after which a new fi. fa. was issued and levied, and sale made. The court say, in delivering the opinion: “ The execution directed to Holcomb, was illegal at the time it was taken out: 1. Because there was a previous execution and levy, on which no sale had been made. 2. Because the defendant was dead before it issued. 3. Because his property, in the hands of his representatives, could not be taken without a previous scire facias.”

    The first point, therefore, decided in the last ease, must decide the present case, if that point was correctly decided, as I have no doubt it was. It is well settled, that where an execution is irregularly sued out, it is void .from the beginning — it is a mere nullity. In Parsons v. Lloyd, 3 Wilson, 345, the judge says: “ There is a great difference between erroneous process, and irregular (that is to say, void) process; the first stands valid and good until it be reversed, the latter is an absolute nullity from the beginning.”
    *In Reed v. Markle, 3 Johns. 524, which was an action of trover, it appeared the property in dispute was sold, and afterward the execution was set aside for irregularity, and the defendant having plead the statute of limitations, the question was, whether the statute began to run at the time of the levy, which was in 1799, or from the time of setting the execution aside, in 1802; and this depended upon the question whether the execution, being irregular, was also void. And the court decided, that inasmuch as the execution had been set aside for irregularity, it was a nullity from the time of issuing, and, therefore, the statute commenced running from the time of levying the execution, which was the act of conversion. The court refer to the case in Wilson, and say: “ In that case the court distinguished between erroneous and irregular process; the latter they held to be void, and a nullity from the beginning; that under the first, a party might justify until it be reversed, but not under an irregular process.”
    In the case of Dorland v. Dorland and Willets, 5 Cowen, 417, an execution was issued and levied on property of one .defendant, and before that writ was returned, the plaintiff, by consent of one of the defendants, issued another execution, and had it levied upon other property. This last execution was set aside as irregular. In Hoyt v. Hudson, 12 Johns. 207, it was decided, that after a constable had levied upon property sufficient to satisfy the execution, he could not afterward make a second levy, without-becoming a trespasser. The court, in giving their opinion, say: When an officer, under an execution, has once levied upon the property of the defendant, sufficient to satisfy the execution, he can not make ■a second levy. This principle appears to be well settled. In the -case of Clerk v. Withers, 2 Ld. Raym. 1072; 1 Salk. 322, it was ruled, that when a defendant’s goods are seized on a fi. fa. the defendant is discharged. In 1 Harris & McHenry, 408, “ the court •determined, that the issuing of two executions upon the same judgment, to the same county, was irregular.”
    In West v. Hughes, 1 Harris & Johnson, 6, the court decided, that a sale made by a sheriff, under an execution which had no return day, was void. The following is the opinion of the court: “ The court are of opinion that *the execution issued by Thomas S. Bond, as aforesaid, is void for want of a return day, •and that no title can be made under the sale made in pursuance thereof.”
    In West v. Hughes, Harris & Johns. 69, Purl’s lessee v. Duvall, the court decided that where a sheriff had levied upon real •estate, but went out oí office before the property was sold, that a venditioni exponas must be directed to the old sheriff who made the levy, and that a sale made by a succeeding sheriff, under a venditioni exponas directed to him, was void. And in answer to the position taken by the appellee’s counsel, “ That the venditioni exponas was the mandate of the court in the nature of an interlocutory .order, and, therefore, if erroneous, voidable, and not void, and that being voidable, the lessor of the plaintiff, on the return of the process, ought to have moved the court to set it aside ; and having failed to do this, he is precluded from taking any advantage of its irregularity in a collateral way.” The court say, “ it is suffi•cient to say that no express order appears on the record that the clerk should issue such a writ as has been issued, and if writs of execution are supposed to be issued under an implied authority from the court, such authority can only be implied in those cases where the execution is warranted by the principles of law.” 1 Cowen, 46; 18 Johns. 306.
    From the foregoing authorities, it is clear that while the levy upon real estate remained no subsequent fi. fa. could issue, and that all proceedings on such subsequent ft. fa. are null and void, as well against purchasers as others. The same doctrine is fully recognized in Woodcock v. Bennet, 1 Cowen, 734-737. And Cutter v. Colver, 3 Cowen, 30, the court decided that after a levy on land the plaintiff could not withdraw the execution and issue a ca. sa.

    But the plaintiff answers that this levy was set aside, and he relies on the order of March 27, 1817, in these words: “ On motion of Mr. Corry and I. G-. Burnet to set aside execution, motion, supported, and execution set aside in this case.” It is contended,, in the first place, by the defendant, that this entry is not specific-enough, in and of itself, to show that the motion referred to-the judgment under which the plaintiff claims. It was a motion made in the case of Ethan Stone, for the use, etc. v. Hezekiah Flint and others, “ but *who those others were can not be ascertained by the record itself, and no parol evidence was offered, and none was admissible to show that the word others meant. David, Thatcher, Seth M. Levenworth, and, James U. Looker,” the-other defendants named in the execution upon which the sale was made. The amount of the judgment is not even named.

      Secondly. It is contended that if the motion appeared to have, been made in the same case, the object and effect of the motion was to set aside the execution returnable to that term of the court-at which the motion was made, and not the execution on which the levy was made. It is the- every-day practice of the courts-to set aside appraisements, venditionis, fi. fas., etc., and whenever any other process than that returnable to the particular term is intended to be set aside or affected, it is so specified upon the record. An execution was returnable to the March term, 1817, and a motion was made to set aside the execution—what execution could be -meant unless the one returnable at that term ? And if all the executions issued in the cause were intended to have been, set aside, the court would have so expressed themselves.
    But if the court should think that the preceding executions Were set aside, we have still another levy which it is not pretended was ever set aside. On the fi. fa. to July term, 1817, the sheriff returns that he has levied on a stock of merchandise, that his writ is stayed by injunction, and that before sale he delivered the property to D. Thatcher, one of the defendants. "We insist that when a levy is made, it is for the time being a satisfaction of the-judgment, and that no other execution can issue until that levy is disposed of, the plaintiff himself can not abandon it without leave of the court (1 Binney, 214), neither could the sheriff after the act of levying; he can not even by suffering the property to be wasted, squandering the money, etc., prevent the conclusion of the law, that a levy is a satisfaction. 1 Ohio, 466, and authorities referred to.

      The next inquiry is, what effect had the injunction which was issued in the cause. It is provided by our statute that when an injunction is granted, the officer, if he has received the money before *he has notice of the injunction, shall pay over the money to the defendant, unless the court shall otherwise ^direct. This provision would have been nugatory, if, without the statute, the sheriff was bound to have restored the money. And as the statute is confined to the case of money received by the sheriff, he can derive no authority from it to deliver up goods. We must, therefore, resort to the practice of other courts to ascertain the duty of the sheriff with respect to goods levied upon prior to the granting of an injunction. The language of a writ of injunction is that the party “ desist from all further proceedings at law until,” etc. Eden on Injunctions, App. 265.
    “If an injunction is obtained upon the bill being filed after execution executed, and, • at the time of the injunction being obtained, the goods are not yet out of the hands of the sheriff; then, if the sheriff proceeds to sell without process, he will be ordered to pay the money into court.” 3 Mer. 234. And in the same case, page 231, it is said by counsel that “ after execution is actually issued, the common injunction can not operate against the sheriff, so as to restrain him from proceeding under the execution, and thus, in the case of goods actually levied in execution, it is usual to make the sheriff a party, in order to extend the injunction to him.”
    I think, therefore, it is a clear proposition that an injunction allowed against a party and the sheriff, has no other effect than to stay proceeding in the state they may be found when the injunction is served, in the same manner that a writ of supersedeas stays proceedings. If a levy has been made, and the sheriff is a party, he can not sell, but must retain the goods. If he has not levied, he can not afterward make the levy.
    Again, the sale is void, because the property had been previously sold on a former execution, issued on the same judgment. This sale, which was for twelve hundred and fifty dollars, was never set aside, and until this was done, no subsequent execution could issue to sell the same property. The sheriff, when the bid was made by Allen, might accept or refuse it, but after he had accepted Allen’s bid, and struck'off the property to him, it was out of his power to say that the property was not sold, unless he done it at the time of ■sale, and then he must have offered the property again. This course would have been pursued by the sheriff in the present ease, if Allen had refused to pay at the time of sale. *If the sheriff saw proper to strike the property off to Allen, without requiring the cash to be paid down, it was a question between him, the plaintiff and the purchaser. The sheriff was liable for the •money to the plaintiff. Whether the plaintiff ever obtained the money or not, so much of the defendant’s debt was satisfied by the sale of the property. If there were any circumstances attending the sale, which would make it unjust to hold the purchaser to his bid, he might perhaps, on motion to the court, have the sale set aside, but it could be done in no other way, and in 5 Cowen, 38, the court decide it can be done in equity.
    In Adams v. Smith and Purmeter, 5 Cowen, 280, a sale had been made of a personal property, but the value thereof having been re-covered against the sheriff and plaintiff, the court, on motion, gave leave to strike out the return of sale, and ordered a fi. fa. to issue for the whole. This course ought to have been pursued in the present case. If Allen was an insolvent when he bid, the court would not perhaps have compelled the plaintiff or the sheriff to resort to their action for the purchase money, but if he was perfectly solvent, the court would not set aside the sale without consent of all parties concerned. They would not do it, because they would not permit men to trifle with the process of the court.
    In Cairns and Lord v. Smith, 8 Johns. 337, a sale had been made, but the attorney was informed by the sheriff, that the purchaser ■had not paid the money nor demanded any deed, and he therefore issued another fi. fa. and offered the -property again; the ■court set aside the execution as irregular. The court say: “Whether the sale was bona fide or valid, or fraudulent and void, is a question which can not be tried upon the present motion; nor can it be permitted to the attonpey who issued the execution, to determine that point for himself. By recalling and suppressing the first execution, after a sale under it, he deprives the purchaser of ' his right, if any right was legally acquired under the first sale.” If, then, the purchaser required a right under the purchase, the defendant also acquired a right to have the purchase money applied in satisfaction of the debt, and he could not have been deprived of that right by an order of the court, unless he had been called upon to show cause ^against such an order, and certainly, as before remarked, the sheriff could not set aside the sale, neither could the plaintiff nor his attorney. I contend, therefore, that for this last reason, the sale is void. The property had been sold on a former execution, and therefore there was nothing for the sheriff to sell under a venditioni exponas. If the property could have been sold again under the judgment, it could only have been done after a new levy had been made, and this could only have been done under afi.fa. et lev. fa. Such a writ was not issued.
    Again, it was contended at the trial, and is now contended, that the defendant, Seth M. Levenworth, had not a legal title to the premises in question. The only title which he had, was an assignment made on the back of the lease by the original lessee, in which he assigns, grants, and sets over to S. M. and Zebulon Levenworth all the estate, right, title, interest, and demand of him the said’ Robinson, to the piece of ground, lot, messuage, or tenement, particularly described and set forth in the within lease. There is only one witness to this assignment. I contend this did not transfer a legal title.
    The act of 1810, providing for the execution and acknowledgment of deeds, reads thus: See. 1. That all deeds for the conveyance of lands, tenements, and hereditaments, situate, lying and being within this state, shall be signed and sealed by the grantor in presence of two witnesses, who shall subscribe the said deed or conveyance, attesting the acknowledgment of the signing and sealing .thereof; and if executed within this state shall be acknowledged by the party or parties, or proven by the subscribing witnesses before a judge of the court of common pleas, or a justice of the peace in any county in this state.” The question, therefore, is presented, whether Robinson conveyed, or intended to convey, either lands, tenements, or hereditaments; because, if he did, then-there must have been two witnesses present, who should “subscribe the deed or conveyance.”
    There is no question, I think, but the legislature, when they ■ passed this and all our other laws wherein the words tenements and hereditaments are -.used, intended to include all manner of estates in lands, which the word land would not include. Eor, un- ■ less such was their intention, it would be ^difficult to find any authority in our statute book to dispose of a lease for years for the payment of a man’s debts. And I think we shall find, by an examination of our several execution laws, that the legislature' could not have intended that leases for years could he sold under the denomination of goods and chattels. In section 8 of the execution law of 1810, “ in case goods and chattels be levied upon and returned as remaining in the possession of the officer unsold for want of buyers, such officer shall return with the writ a true and perfect inventory of the goods and chattels to be taken,” can it be supposed that the legislature intended the officer should take hold of a leasehold estate for ninety-nine years? If such an estate could be considered as goods or chattels in the sense used by the legislature, then the officer must have taken possession of them or he could not have complied with the law. The statute regulating the duties of justices of the peace, authorizes constables to levy on the goods and chattels of the defendants, but I think the constable could not sell a leasehold estate for ninety-nine years. If under the terms goods and chattels such a lease is included, then the right to this bind of an estate may be tried by a magistrate at the present time, and formerly by a jury of five persons. Again, if leases for ninety-nine years are to be considered as goods and ■chattels, then a mere delivery would be a sufficient transfer of the title, and no written transfer or assignment would be necessary. And the statute of frauds and perjuries would be a dead letter, for an equitable interest to lands can not be created or transferred without a deed or note in writing. In Putnam v. Wescott, 19 Johns. 73, the court decided that their statute authorizing a justice ■of the peace to issue an execution “ commanding a constable to levy the debt, damages, and costs of the goods and chattels of the person,” did not authorize a constable to sell a term for years. The judge says, “ the real question, then, is, in what sense the legislature used the words goods and chattels? Whether they mean ■chattels personal only, or chattels generally, including both real and personal ? ” And, again, “ I am of opinion that the legislature used the expression goods and chattels as regards justices’ executions, in reference to goods and chattels personal.” Why may not the same interpretation be given to our statute using the same language ?
    *But should the court be against us on the foregoing points, we contend that a new trial ought to be granted; because Ira White, who was produced as a witness, was interested in the event •of the suit. First. He was interested because he had covenanted with Bisbee, th e lessor of the plaintiff, that he would forever warrant ¡and defend the' premises against all persons claiming under him, his heirs, or assigns. The court will recollect that the principal -question before the jury was this, whether White had not forfeited the lease by not paying the rent according to the terms of the lease, and whether he had not expressly agreed that there should be a forfeiture. Here, then, was a witness who was liable under his own covenant to answer Bisbee in damages, in case Bisbee should be unable to recover against the defendant. If by his own act he had divested himself of his title, he was liable under his covenant with Bisbee, and he could not, therefore, testify in the cause, be•cause he was endeavoring to avoid responsibility under his covenant. The question was, whether he, the witness, had agreed to forfeit the title. He had agreed to warrant and defend against all •of his own acts; he was, therefore, bound to defend and warrant against an act of forfeiture. He was directly interested in the event of the cause; if the forfeiture was established, his liability to Bisbee was fixed. And the record in this case might be used in evidence in a suit against White, to show the amount of costs, if for no other purpose. Jackson v. Hallenback, 2 Johns. 394; Heermance v. Vernoy, 5 Johns. 5; 1 Phil. Ev. 49, 50, and note.
    Starr, for defendant:
    The defendant moves the court for a new trial, on the ground: First. That previous to the execution of May 12, 1819, by which the lot in controversy was taken and sold to Ira White, an execution had issued on the same judgment, tested October 15, 1816, ■and levied on eighty acres of land as the property of one of the defendants in the execution. It is said that this levy had not been set aside, but was a subsisting levy when the lot was levied upon and sold under the subsequent execution of May, 1819. This .assumption is hardly warranted by the facts in the case. To the execution of October 5,1816, there is a return *that it was levied upon the eighty acres of land, and on January 2,1817, a writ of venditioni exponas issued, commanding the sheriff to make ■sale of the eighty acres of land, to which he returned that he had .sold it to Robert Boal, as the agent of John H. Platt; but the terms of sale not being complied with, it remained on hand unsold for want of buyers. This is under date of March 29,1819; and on the 27th of the same month, two days before, there is an entry ¡setting aside the execution in the cause. Whether this entry is to be considered as referring to the execution of October 5, 1816r or to the execution of January 2, 1817, or to both, is somewhat doubtful. If to the former, then the levy was sot aside, and the 'objection fails. The more reasonable conclusion is, that it was intended to refer to both ; that the object of the motion was to set aside everything that had been done by execution on the judgment. There was no sensible meaning in a motion to set aside themnditioni exponas only, which had not then been returned. But admitting that there then was a subsisting levy on the eighty acres of land, when the lot was levied upon and sold by the execution of May 9, 1819, did it make that execution void, and defeat the •title of the purchaser under it ? As the law stands, a levy three years old would amount to nothing. It is not sufficient to say •that the execution of May 12, 1819, ought .not to have issued, the former levy being in force, or that it might have been set aside on motion, for that reason. To have the effect of defeating the title of the purchaser, the irregularity must have been such as to have rendered the execution void, not merely voidable. It issued upon a regular, unsatisfied judgment, and upon, the face of it the execution is regular. The title of the purchaser, therefore, under it, is complete, and not liable to be divested in consequence of prior executions having been issued and levied, which did not produce a satisfaction of the judgment. 5 Wheat. 503. The first levy did not satisfy the judgment, even if the land levied upon was equal in point of value to the judgment. It was still in full force as such. A levy upon real estate is nothing more than a designation by the officer of the particular tract of land he proposes to sell, or appropriate toward satisfying the execution. It does not change the possession, or affect the title, *as in the case of personal property taken upon execution. In the latter case it is a satisfaction of the judgment, and if the defendant be sued in debt, or by scire facias, he may plead it' in bar. Not so when real estate has been seized by execution. In the one case if an injury be. done to the property, the officer may maintain an action for it, but it was never heard of that an officer could maintain an action for a trespass committed upon real estate, because-he had levied an execution upon it. It is worthy of remark that the execution upon which the lot was sold has never been set aside, and if it had been, the title of the purchaser might not have-been affected by it.

      The eases in 8 Johns. 361; 13 Johns. 337; 16 Johns. 573; 1 Cowen, 734; 1 Ohio, 458; 2 Ohio, 287; 3 Ohio, 187; 4 Wheat. 503, manifest the irregularities which do, or do not defeat the title of the purchaser of real estate sold upon execution. Indeed, the authorities-cited by the counsel for the plaintiff perform the same office, and it is believed that none of them sustain the position that a levy upon real estate by a prior execution, defeats the title of a purchaser under a subsequent execution, issued upon the same judgment. In the case of Arnold v. Fuller’s heirs, 1 Ohio, 458, the defendant in the execution, had been dead 'near four years before it issued, by virtue of which the lands were sold, and the purchaser was the attorney of the plaintiff, who is usually chargeable with notice of all irregularities.
    After the decisions which have been made in this court upon the subject of titles to real estate, acquired by purchase under execution, it would be strange if a title thus acquired, and otherwise void, should be defeated by a circumstance seemingly so unimportant as the levy of an execution upon other real estate, issued upon the-same judgment, near three years before, and which nothing but the diligent search of a vigilant clerk could have detected. To give to such a law the effect contended for, imposes upon the purchaser various duties, and requires of him a degree of examination-which few or none will make. The spirit of the decisions has been to protect the purchaser at judicial sales ; but to make his title depend, or rather to make it liable to be defeated by the levy in question, would remove entirely the guard to his safety.

      *Second. It is assigned as a second reason for a new trial, that a small “stock of merchandise” was levied upon by virtue of an execution, issued upon the same judgment, March 31, 1817, and which, it is said, had not been disposed of when the execution of May 12,1819, was issued. It appears from the sheriffs return to the execution, that he disposed of it himself, by restoring it to one of the defendants in the execution, from whom he had taken it, after there had been a litigation concerning it. Whether he did right or wrong in so doing, or made himself liable to the plaintiff, in the execution for the value of the merchandise, can have no bearing upon the question of White’s title under the execution, by virtue of which the lot was sold. One thing is true, that upon the return of tins execution it was not satisfied, as appears upon the return itself. If the merchandise taken upon the execution was sufficient to satisfy it (which does not appear), it was unsatisfied when it was returned, and the improper conduct of the officer in restoring it, if it ought not to-have been done, is a matter to be settled between himself and the plaintiff, and to those two it is confined in its effects.
    It is assumed, as a ground for a new trial, that to the venditioni exponas of September 27,1819, the sheriff returned that he had sold the lot in controversy to Samuel Allen, for one thousand and fifty dollars. It is a part of this same return that he had not received the money, and that Allen refused to comply with the terms of sale. What was the sheriff to do ? He could make no other return. It is well settled that if property be stricken off to a bidder, and he refuses to complete the purchase, the sheriff may immediately expose it to sale again, and strike it off to a person who will pay for it, though a less sum be given for it than was first bidden. In this case, upon Allen’s refusing to take the lot, the sheriff might have varied it, and have stricken it off to White for one hundred .and seventy dollars (as it was sold to him afterwai’d), if he had been the highest bidder. If this could have been done, it can not vary the case by returning the execution, with|the fact of Allen’s refusal, and taking out another.
    Striking off the lot to Allen did not transfer the lot to him by •operation of law, and by that means work a satisfaction of the execution. The sheriff had no means of compelling *Allen to take the lot. His sale was within the statute of frauds and perjuries. 2 Caine, 61; 2 Johns. 248. But suppose he had; his omission to do so would only make him liable to either the plaintiff or defendants in the execution, whose interest might be most affected. It would be odd, indeed, if the misconduct of a ministerial officer under one •execution, could affect the title of a purchaser under a subsequent •execution. It would be giving to the conduct of the officer a bearing and an effect which the law does not warrant.
    It is alleged that Seth M. Leavensworth, whose estate or interest in the lot was sold on the execution, and which is the title of the plaintiff, had no legal title to it, because the assignment of the lease to him and Z. Leavensworth, was not attested by two subscribing witnesses. The assignment was made on July 11, 1814, and was attested by one witness and acknowledged before a justice of the peace. Without undertaking to decide what the law now is, it is believed, that prior to the act of February 24, 1820, there was no law of the State of Ohio requiring the attestation of witnesses to the assignment of a lease.
    A leasehold interest might be sold as a chattel on execution, at common law. 3 Black. Com. 417. And previous to the act of January 29, 1821, any title by lease might have been sold as goods, no doubt, in Ohio. That act required that the interest of a lessee under a permanent lease, when sold on execution, should be appraised as real estate. But even if an appraisement, in this case, had been required before sale, the omission of the officer to cause it to be done, would not destroy the title of the purchaser. 3 Ohio, 187.
    If Ira White was incompetent witness, by reason of interest, in the event of the suit, it arose from his deed of September 25, 1824, conveying the lot to the lessor of the plaintiff. In that deed, he covenants against all persons claiming under himself. His testimony related principally, if not entirely, to what he said and did some months after the execution of the deed, about January 1, 1825, in relation to a supposed forfeiture of the lease. His acts in January, 1825, would not have been the subject matter of his warranty in September, 1824. A grantor who has warranted merely against persons claiming under himself, is a competent *witness for his grantee against persons not claiming under him. 1 Phil. Ev. 50.
    The question whether the lease had been forfeited or not, was submitted to the jury under the direction of the court, as to what might occasion a forfeiture of the lease then before them; and a verdict can not be said to be so contrary to evidence, as to justify a court in setting it aside, when there was much evidence on both sides.
   *By the Court :

The first ground assigned for a new trial rests upon exceptions to the title of the plaintiff’s lessor. And the first objection is, that the execution issued to November term, 1816, was levied upon lands of one of the defendants, and until that levy is disposed of, no second fi. fa. could issue. The plaintiff’s answer to this is, that in March, 1817, this execution and levy were set aside. And upon an examination of the order of court relied upon, we are satisfied that such was the fact. That objection, therefore, is not supported by the facts in the cause.

A second objection is, that on the execution to July term, 1817, there is a return of a levy upon personal goods of one of the defendants. But it is a part of that return, that the sale was stayed by an injunction, and the goods redelivered to the owner.

This we deem a sufficient answer to the objection. It was lawful for the sheriff, upon the service of the injunction, to redeliver the goods to the owner. The injunction bond was substituted for the plaintiff’s security. For the sheriff to retain the goods might enforce a great loss upon him, or upon the defendant, by the-natural decay of the goods, by their accidental loss, or by the charge of keeping them, as in the case of live stock. The case is very different from that of a levy on land, which is not perishable; and where the debtor’s possession is not divested by the levy.

The sale to Allen, on the execution to November term, 1819, it is maintained, was a disposition of this property, so that a second sale could not be made. The return shows that Allen refused to complete the contract, by paying the money. We incline to-the opinion, that if the purchaser refused *to complete the-contract, by paying the money, the sheriff was not bound to make-himself liable, by returning an actual sale, and trusting to a recovery against the purchaser. But, without deciding this point, we do not hesitate to say, that if the parties to the execution took no exception, at the time, and a new vendí, issued without objection, the writ was not void, and third persons can not now so treat it.

The assignment of the lease from Robinson to Leavens worth was valid, though tested by one witness. The law of 1805, respecting conveyances, did not extend to leases for terms of years. Two witnesses, therefore, were not required. The law of 1824 is more comprehensive, in its terms, and requires leases to be attested as other conveyances of real estate.

The defendants, having put White upon his voir dire, can not afterward object to him on the ground of interest. Besides, the judges who presided at the trial think well of his testimony. The same judges also report that, upon the question of fact submitted to the jury, the question was fairly before them upon such grounds as do not admit of the interference of the court to grant a new trial, as in case of a verdict against evidence. Motion overruled and judgment for plaintiff.

      11ote.—The foregoing opinion is drawn from notes furnished by Judge-Tease. Nothing is said in them upon the point whether a lease for ninety-nine years, of real estate, could be sold as a chattel on execution. But, as the validity of such sale was indispensable to sustain the plaintiff’s title, the legitimate inference seems to be that the court considered leases liable to be seized in execution and sold as chattels. Otherwise, a new trial would have been granted. — Reporter.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    *Lessee of Gray v. Askew.
    Execution law of February, 1805, did not authorize a sale of decedent’s lands on judgment against executors or administrators.
    There is no course of practice or current of decisions by the territorial courts establishing a rule that decedents’ estates may be sold on judgments and executions against the personal representative.
    Governor and judges, adopting laws of other states, did not necessarily adopt the practice of the court of those states under such laws.
    This cause was adjourned here for decision, from the Supreme Court of Hamilton county. It was an ejectment, and came before the court upon a case agreed.
    The lessor of the plaintiff claimed under the devisees of Luther Kitchel, deceased, who died in Hamilton county, in the year 1805, having made a last will and appointed W. Brown and P. Kitchel his executors. The will was duly proved and the executors qualified. At the time of the testator’s death he was indebted to Calvin Kitchel, who brought suit against the executors, and at August term, 1806, of the court of common pleas of Hamilton county, recovered judgment. Execution issued to December term, upon which the sheriff indorsed “nulla bona,” and made a levy, and in December, 1806, sold the lands in question. The defendant claimed under the purchaser from the sheriff, and was in possession of the land.
    Garrard, for the plaintiff:
    Upon the facts agreed in the case, the only question of law presented for decision, arises upon the validity of the deed executed by the sheriff to pass the title of the devisees of Luther Kitchel. If the sale was valid and the deed passed the title of the devisees, it is presumed that it was in virtue of some legislative enactment. There can be no doubt that, at the death of Luther Kitchel, the fee of the premises vested in his devisees in virtue of his last will and testament, and it must remain in them unless they have been divested of it by their own acts or by the act and operation of law.
    At common law, the personal estate is the primary fund out of' which the debts of the deceased are to be paid, and no resort can be had to the real until the personal estate has been exhausted. Thus far our statute law coincides with the rule of the common law. In other respects there is a wide difference.. At common law, the real estate held by the heir or devisee was reponsible in those cases only where they were bound by the terms of the contract; but, *under our statute all cases are embraced, and the lands of the deceased are liable to the satisfaction of his debts, whether they are judgments or mortgages, notes of hand or open accounts. At common law, in those cases where the lands held by the heir or devisee could be reached, it was not affected by tho transfer of the fee upon judgment and execution; but by extending the lands in the hands of the creditors, till by the receipt of the “rents and profits” the demand was extinguished.
    The doctrine whereby the fee simple of lands is made to pass by a sale upon execution, is of late date, and is to be traced to the legislation of our own country. As an innovation upon the common law, the statutes by which it is introduced should receive a strict construction at the hands of our courts.
    The first law which authorized the sale of lands on execution was adopted from the Pennsylvania code, in 1795, and took effect-the 15th August of the same year, entitled, “A law subjecting real estate to execution for debt.” " Land Laws, 327. A second law was passed by the territorial legislature, January 19, 1802, entitled, “ An act regulating executions,” by which the act of 1795 was repealed, except as to all judgments recovered under that act.. Land Laws, 331.
    This law remained in force till February 16, 1808, when the state legislature passed an act, entitled, “An act regulating judgments and executions.” Land Laws, 338. By section 20 of this-law the acts of 1795 and 1802 are expressly repealed, except for the satisfaction of judgments obtained prior to its passage. The next law, on this subject, was enacted February 22, 1808, and it repealed sections 10 and 11 of the law of 1805, which merely related to the manner of valuing lands, and prescribed the restrictions under which they could be sold. Land Laws, 343.

      By the act of January 25, 1810, section 24, the acts of 1805 and! 1808 are expressly and unconditionally repealed. Upon a careful examination of these several acts and their various provisions, it. will be seen that the case now under consideration must be determined by the act of 1805, which was in force as to all judgments, recovered after February 19, 1805, till January 25, 1810. Land Laws, 350.
    *It is believed that the sale in question can not be sustained under the provisions of the act of 1805. Section 1 of that, act is claimed as the warrant of the sheriff to levy on and sell the-lands of the devisees, who are admitted to have been no parties to the judgment on which the execution issued. The language of the section is general and indefinite: “All lands, tenements, and real estate shall be liable to be levied upon and sold by execution, etc.” It is argued that this language embraces all lands, in every situation, as well that which is vested in devisees, as that which is in the hands'of the living judgment debtor.
    But this argument, which assumes that no limitation is to be placed on these general terms, proves too much; because, if the universality of the language of the section authorized such sale, without regard to the fact whether the person against whom the judgment was rendered had or had not an interest in the land levied on, then, on a judgment against A., the land of B. would be subject to be taken and sold; for “all lands ” may be levied on and sold by execution issued upon “judgments,” and it would matter not who owned the land or against whom the judgment was rendered. The executors of Batch ell, against whom this judgment was rendered, had no more interest in the land than an entire stranger. The trust which they had to execute did not embrace the land, and it would have been as legitimate and proper to have levied on and sold the land of a third person as the land of the devisees. If there was no clause in the act itself explanatory and restrictive of the general and indefinite language of this section, the court would adopt such a construction as would avoid the gross absurdity contended for, and confine the operations of the judgment and execution to the lands of the judgment debtor. But the statute furnishes its own construction by the subsequent sections.
    By section 2, it is provided that “the land, tenements, etc., of the defendants,” shall be bound and liable to the satisfaction of the judgment, etc.
    By section 6, the mandate of the act is, that “for the want of goods and chattels, he cause the same to be made of the lands, tenements, etc., of the defendant.”
    Section 7, in prescribing the duties of the officer, provides that if goods,and chattels be not found, the sheriff *shall indorse •on said writ “nulla bona,” and forthwith levy the said execution on the lands, tenements, and real estate of the defendant.
    By section 12 it is provided, that the sheriff shall make to the purchaser as good and sufficient deed of conveyance as the party himself could have made; “which said deed shall vest in the said purchaser as good and as perfect an estate in the premises therein mentioned as was vested in the said defendant.”
    Thus it is manifest that the letter and spirit of the law alike confine the sale of lands upon execution to those cases where the defendant has title to the lands to be sold. What title, then, had the executors who are the defendants in the judgment and execution, to the premises in question ? It is true that they were the executors of the last will and testament of Luther Kitcheli, and of course the legal representatives of the personal estate, and it was right and proper that they should be compelled by due course of law to show that there was nothing in their hands out of which the debt could be satisfied, before the creditor could resort to the real estate for the satisfaction of his judgment.
    The devisees of Kitcheli held the fee of the land, and, in order to reach it in their hands through the instrumentality of this-law, it was necessary they should have been before the court.
    A strange notion has haunted the minds of some of the profession, and it has again and again been pressed in various shapes upon this court, that the indebtedness of a deceased person somehow or other interrupted the descent of his estate, and that an executor or administrator had the whole estate cast upon them for the benefit of creditors, etc. And with this notion as their foundation, they have contended, in principle, if not in terms, that the executor or administrator, thus clothed with his “ nondescript” estate, could act in relation to the subject according to their own measure of justice. A different decision has, however, received the sanction of this court. It is submitted that it is the settled law of this court, that the course of descent is not broken or interrupted by the indebtedness of the ancestor or devisor, and that the estate vests direct in the heir or devisee, subjeco to the debts of the ancestor, and liable to be divested only in the *mode pointed out by the statute. 1 Ohio, 522 ; 2 Ohio, 248-250.
    The Pennsylvania decisions relied upon to support the sale do not apply; they were based upon the acts of 1700 and 1704, which in direct and explicit terms authorizes a sale upon a judgment and execution against executors, administrators, etc. 1 Yeates, 386; 2 Serg. & R. 377.
    But it is said that the practice of the courts in the Northwestern Territory, and for some time after that state was organized, was in accordance with the Pennsylvania decisions, which practice had by its adoption and continuance become the law of the land, and should be sustained. Whatever may have been the practice of the territorial courts, it is certain that it applied only to the act of 1795, and not to the act either of 1802 or 1805. It was natural enough that when the governor and judges adopted the law of 1704, that they should also have adopted the Pennsylvania practice, which was really founded on the act of 1700, and not of 1704 ; and hence, as long as the act of 1705, which is a literal copy of the act of 1704, continued in force, the same construction was applied to it. But the act of 1795 was repealed as to all future judgments, both by the act of 1802 and 1805, and can not be made to apply itself, or pass its construction to the act of 1805. The validity of this practice (if it were recognized) under the law of 1802, could not have been drawn in question before the territorial courts. If the practice prevailed under the act of 1802, it was adopted merely by the executive officer of the court, and can not be viewed as having the sanction of judicial decision. With the passage of the act of 1802, ceased the acknowledgment of deeds in open court; and the law of 1795 was left free to operate on all judgments rendered prior to its repeal. Hence, there could have been no judicial construction of that act till a judgment was obtained, an execution issued, land sold, and an ejectment brought; which could not have taken place under the organization of our courts till after the establishment of the state government. It is, therefore, erroneous to suppose that the act of 1802 received such construction by the territorial courts and was continued by the •state authorities, either in reference to that act, or to the act of 1805. In the few instances in which this error has occurred, it seems to have ^arisen from confounding the provisions of the act of 1795 (which was still in force as to judgments rendered prior to its repeal) with the provisions of the acts of 1802 and 1805, which were entirely different.
    Wade, for defendant:
    Upon this state of the fact, the question is presented to the consideration of the court. Could the sheriff, under the then existing laws of this state, levy upon the real estate of the deceased, upon an execution issued on a judgment obtained against his executors,, without the heirs or devisee being made a party thereto.
    That it was the constant and uniform practice of the courts of Hamilton county and the western part of the state, is matter of history, and requires no evidence to establish it. It is admitted that this practice is not in conformity to the principles of the-common law, but it is contended that there is such an essential difference between our laws and that of England respecting the-liability of real estate to be seized and taken in execution for the payment of debts, that the common law can not with safety be resorted to as the rule of construction. By the common law, the fee-simple can not be sold on execution, it can only be extended until the rents and profits shall pay the debts. In this state it may be-sold absolutely, and the debtor wholly divested of any claim thereto. By our law, real estate is subjected to the payment of all debts of deceased persons, whether the same arise by bond, simple-contract, or otherwise. At the common law they can only be subjected to the payment of debts, when the heir or devisee is expressly bound by the contract. At the common law, an administrator has no power or control over the real estate of his intestate,, and an executor only by devise, while here, real estate is sub modomade assets in the hands of the executor or administrator for the payment of debts. These differences in principle have arisen from statutory enactments, made in conformity to the genius of our government, and have prevailed in many of the states from a very early period.
    In the organization of the Northwestern Territory, the governor and judges were invested with the legislative authority, or more properly speaking, with the power of adopting laws from the states. The first class regulating executions that I have met •with is the law of 1795, adopted from the Pennsylvania code, and is a copy of the execution law of that state, passed in 1704. Ohio Land Laws, 327. The first section of this law subjects all lands, tenements, and hereditaments whatever, when no sufficient personal estate can be found, to be seized and sold on judgment and execution obtained. Under this law the practice of the courts of the territory was established, and that, too, as it were, by the makers of the law themselves, which was to issue execution on judgments obtained against debtors, or against their executors or administrators, and levy on the lands of the deceased, without issuing a scire facias to the heir or tertenants, to make them parties thereto. And this course of proceeding is in perfect accordance with the settled practice of the courts of Pennsylvania ever since their enactment of the aforesaid law. In Graff v. Smith’s adm’rs, 1 Dallas, 481; Young v. Taylor, 2 Bin. 228; Wilson v. Watson, Peters’ U. S. Cir. Ct. 267, the principle is fully recognized that by the existing law of the State of Pennsylvania, a scire facias against heirs or.devisees is not necessary in order to have execution against the lands of an intestate debtor. But it is contended that the practice in Pennsylvania grew out of the law of 1700, in which act, it is said, judgment against debtors, their heirs, executors, and administrators, are expressly named.. The act I have not seen, but consider the settled practice of those courts, for near a century, under the act of 1704, as an answer thereto. And, indeed, section 3 of the act of 1795, or 1704, shows that it was not the intention of the legislature to limit the rights of a creditor, or change them from what they were under the law of 1700. That act provides that after lands have been extended by the sheriff, if before the extent be out, other debts or damages shall be recovered against the debtor or defendant, his heirs, executors, or administrators, which can not be satisfied by the extent, a writ of venditioni shall issue to the sheriff, upon which he shall sell the lands. Here are several cases provided for in which the land may be sold. One is, when a judgment is obtained against the deceased debtor’s executor or administrator, and that, too, without *any scire facias to make the heir a party. In the same year with the adoption of the above statute, the law of Pennsylvania for the settlement of intestate estates was also adopted. Ohio Land Laws, 281. By this law, lands were made assets in the hands of administrators for the payment of debts. Prom these laws this principle seems to follow that the creditor had a lien upon the real estate of his •■deceased, debtor, and that the heir, upon the death of his ancestor, did not obtain such a right in the real estate as would enable him to alien it’and defeat the creditor. Yet, if the common law doctrine is to prevail, the real estate of the ancestor may be aliened by the heir so as to divest the creditor of any lien upon it, thereby ■defeating the avowed object of the law, which was to secure to creditors the payment of their just debts.
    The territorial legislature of 1802 passed another law on the subject of executions, the first section of which is, in its language .and import, similar to that of 1795. Land Laws, 331. And in 1805 the general assembly passed a law on the subject, the first -section of which is the same with that of 1802, omitting the preamble. The principal object of the legislature in the law of 1802, upon an examination of it, will be found to have been to subject mortgages to execution, and not to diminish the rights of credit- • ors. The principal object of the legislature in the law of 1805, seems to have been to get rid of this obnoxious provision. Under the law of 1805 the sale under consideration was made. As the language of the first section of all these acts is essentially the same, it is difficult to conceive how a different course of proceeding, in order to subject the lands of deceased debtors to sale on •execution, should have been required under the two latter acts, than was adopted under the former. It was natural, and what was .■to be expected that, in adopting a law from another government, ■we should adopt the practice that prevailed in that government under it. Indeed, the operative reason for its adoption must have been its salutary effects in practice. The practice of the courts, •under the law of 1795, must have been known to the legislature when they enacted the law of 1802 and 1805, and if they had intended by them to change the settled practice of the country, they would, most certainly, have introduced some provision in them by which such ^intention might have been known. There is ,no such provision. Sections 6 and 7 are relied on for this purpose ; they do not, however, throw much light on the subject. "When judgment is obtained against executors or administrators, it is in their fiduciary capacity, and the execution is awarded against the testator or intestate’s property, and not against their «own; nor does section 20, which repeals the laws of 1795 and ■1802, aid in this matter. By section 22 of the act of 1802, it is .manifest the legislature did not intend to change the practice of the court under that law, for in that section it is provided that, where a person dies charged in execution, the judgment debtor may lawfully sue forth execution against the lands and tenements, goods and chattels of the deceased debtor, in such manner and. form as he might have done by the laws of the territory had the person never been taken and charged in execution. Section 18 of the law of 1805 reiterates substantially the same provision. Under such circumstances, by the law of 1795 and the practice of the-territorial court, as'sanctioned by the adjudications of the courts of Pennsylvania, a scire facias to make the executors or administrators a party is all that could be required to have execution ■ against the lands of the deceased debtor. And if, in case of this kind, it would be unnecessary to issue a sci. fa. to the heirs, there • can be no case presented where it could, with propriety, be required. Eor this court now to decide that this practice was illegal, would be doing incalculable evil in this part of the state. It is-believed to be a common error. If it is one, the maxim of law iscommunis error facit jus.

    I wish the court to refer to the able opinion of Judge Burnet on this subject, given in the case of McArthur v. Porter, 1 Ohio, 99, and to the authorities there cited.
   By the Court :

The sale of the decedent’s real estate, in this ease, must be sustained, if at all sustainable, upon one of two grounds. It must be-shown that the statute law of the state authorized it by a fair construction of its terms, or that a course of judicial decision has so sanctioned the mode of proceeding *as to give it the authority of law. If either of these two grounds can be satisfactorily established the sale is valid; if neither is tenable, it is inoperative.-

The judgment was rendered in August, 1806, the sale took place in December of the same year. The act of February, 1805, “defining the duties of administrators on wills and intestates’ estates, and providing for the appointment of guardians,” was the only statute law then in force, 'defining the powers, duties, and liabilities of executors and administrators. It gave no power or control to either, over the lands of a deceased person. But, in all its provisions, limited their functions to the control of the personal estate. The defendant’s counsel does not look to the law, regulating the duties of executors and administrators, for authority to effect the sale. He attempts to deduce it from the general law, “regulating judgments and executions,” which was then in force, passed February 16, 1805. We will examine the provisions of this law, and endeavor to ascertain whether they contain anything to warrant the sale of a decedent’s lands, upon a judgment against his personal representative.

Section 1 provides, “ that all lands, tenements, and real estate, shall be liable to be levied upon and sold by execution, to be issued on judgments, which may hereafter be recovered in any court of record within this state, for the debt, damages, and costs due and owing on such judgment.”

If these terms were to be taken in the unlimited sense of their expression, they might be interpreted to subject all lands to the payment of any judgment. The injustice, as well as the ridiculous absurdity of such an interpretation, puts it out of the question. The legislature only meant to declare that the real estate of a debtor should be liable to be seized in execution for the satisfaction of his debts. In what case, and under what circumstances it should be so seized, was to be subsequently provided for by law. And in the succeeding sections of the act it is distinctly shown that it is only the real estate of the defendant, in the judgment, that is made liable for its satisfaction. Section 2 confines the lien to “the lands, tenements, and real estate of the defendant.” Sections 3, 4, and 5 settle the right of preference between several plaintiffs, having judgments against the same defendant. ^Section 6 provides, “ that any execution to be levied on lands, tenements, or real estate, shall command the officer to whom it is directed, that of the goods and chattels of the party against whom it is issued, he cause to be made the moneys contained in said writ, and that for want of goods and chattels he cause the same to be made of the lands and tenements and real estate of the defendant.” Section 7 provides that the sheriff shall, immediately after receiving such writ, levy on the goods and chattels of the defendant, to satisfy the moneys contained in the writ; but if goods and chattels be not found, the sheriff shall indorse on the writ the words nulla bona, and forthwith levy the said execution on the lands, tenements, and real estate of the defendant, of which said defendant was seized, at or after the first day of the term in which said judgment was obtained.”

We can conceive of no process by which, according to the established form of proceeding against executors or administrators, the lands of a decedent can be reached, in virtue of these provisions, upon an execution against either. An exposition of the forms of pleading, and of judgments against the executor or administrator, seems to place this in a clear point of light.

In an action against an executor, if he have funds in his hands to pay the debt, the judgment against him is, that the plaintiff recover his debt, to be levied of the goods and chattels of the deceased, in his hands to be administered. If, on execution upon such a judgment, nulla bona be returned, the proper step is, to proveed personally against him for a devastavit, in which case judgment goes against the person of the executor and subjects his individual estate, and if necessary, ultimately that of his security. On a judgment in this form no execution could issue to reach the decedent’s land, conformable to the provisions of the law.

Again, if the executor plead plene administravit, and the plea be found for him, the judgment is, that the plaintiff recover his debt, to be levied of the goods and chattels of the decedent, that may hereafter fall into the hands of the executor. If the plea be found against him the judgment goes against him personally. It is beyond all doubt that no execution could issue upon either of these judgments, by which the decedent’s lands could be touched consistent with the law then in force.

^Further: Should the executor plead that he had fully administered all the goods and chattels in his hands to be administered, and should the plaintiff reply, that the decedent died possessed of real estate, would not such a replication be manifestly bad? The executor has no power over the real estate. He can not convert it into assets, and, consequently, can not be made liable npon account of it. An issue joined upon such a replication, would be an immaterial one, and, upon a demurrer, judgment must be given for the defendant. If the lands of the decedent, in 1806, were assets in the hands of the executor, they must have been, in some form, a matter of investigation, and liable to ba rendered subject to the judgment in the case by a direct adjudication. Unless this was the case, a strange anomaly would exist. On a judgment against an executor, property could be seized in execution, and made liable to its satisfaction, in which the defendant had no interest, and respecting which he could be called to no account. There is nothing in the law that indicates an intention, on the part of the legislature, to introduce this absurd anomaly. But, as we think, much that indicates the contrary.

When suit is brought against an executor, he is, emphatically, and to every intent and purpose, the defendant. In his hands the goods and chattels of the deceased are so far his own, as to be properly levied upon in an execution on a judgment against him as executor. But this can, with no color of justice, be alleged of the decedent’s lands.

The sixth section of the act which provides for levying the execution on land, is very particular in directing how it shall issue. “Any execution to be levied on lands, tenements, or real estate, shall command the officer ’’ to make the money of the goods and chattels, and for want of goods, “ of the lands, tenements, and real estate of the defendant.” Under this law, could an execution issue on a judgment against an executor, commanding the officer to make the money of the goods and chattels in his hands to be administered, and for want of such goods and chattels, of the lands, tenements, and real estate of the decedent? Such an execution would not be sustained by either the terms or the spirit of the law. The decedent is not the defendant, and the estate of none but the defendant is made liable.

*There is the same difficulty in proceeding under the seventh section. If no goods be found, the officer is directed to indorse nulla bona, and levy on the lands, tenements, and real estate of the defendant, of which the said defendant was seized," at or after the judgment. The executor never was seized of the real estate of the decedent. He can not, any more than the decedent, be made to unite in himself the double character of defendant to the judgment, and the part seized of the estate. It is for such a case, and for none other, that provision seems to be made. The terms of the law, in connection with the forms of proceeding, exclude the interpretation that it was intended to authorize the sale of a decedent’s real estate, upon an execution against his personal representative; for all that is here said of an executor applies with equal force to an administrator. This conclusion might be justified by other arguments drawn from the inconvenience in settling the estate of a decedent, the confusion that would be introduced into the forms of business, and the mischiefs likely to result to the heir. But it is not now deemed necessary to do so.

The next inquiry is as to the practice of the courts, and course-of decisions upon this subject. It is alleged that, from the adoption of the law subjecting real, estate to the payment of debts, from the Pennsylvania code, in August, 1795, the practice prevailed of selling a decedent’s lands upon judgment and execution against his personal representative. That this practice has acquired the sanction of law, and that the act of 1805 is substantially the same in its provisions, and consequently subject to the same construction.

We recognize, to its full extent, the doctrine that where the law has been declared by an uninterrupted current of decisions, it is not to be disturbed or unsettled, so as to break up the foundations of titles acquired under them. We admit, too, that a rule of property should be preserved, which rests upon a long and an inveterate course of practice, although apparently founded in no sound reason whatever. But it does not follow, from these admissions, that the practice of attorneys, clerks, and sheriffs, in one section of a state, subject everywhere to the same laws, and a practice of some dozen years continuance, is to be regarded as law in the particular section where it prevailed. It is very certain *that, in some few instances, the real estates of decedents were sold upon judgments against executors or administrators, during the territorial government, and at some times and in some places since. There is no proof before us that this practice ever received the sanction of the territorial or state courts where it prevailed. If the question were raised and decided, some notice of it could be found upon the minutes of the courts, no matter how loosely kept. And those who seek to make it a rule of property on this ground, surely ought to produce some evidence of what they allege. If nothing more can be said than that it passed sub silentio, it has no claims to favor on the ground of decisions. The Supreme Court of the United States, in Telfair v. Stead’s ex’r, 2 Crunch, 418, proceed expressly upon the evidence-they had received, of the construction given by the courts of Georgia to the English statute. And this is the principle of all decisions, from the earliest times to the present. It is not enough that the question passed unnoticed, it must have been decided. A construction must be given by the courts themselves. So it was in Keen v. Delaney, 5 Cranch, 32. The judges of the Supreme Court had taken acknowledgments of deeds for almost a century,, when the power to do so was first questioned. The chief justice there says: The court can not doubt that the courts of Pennsylvania consider a justice of the Supreme Court within the act.” Here we doubt about the decisions or the practice, with the approbation of the courts, which are alleged, and no proof is offered excejat the fact of the sales; that is, the irregular practice itself is adduced to sanction itself. Besides, a partial course of decision or of practice, known only to some of the courts, and in some parts of the country, and of no longer existence than ten or fourteen years, has never yet been esteemed as fixing a rule which should be sustained against the plain letter of the law.

But another argument of construction is urged, The law of 1795 was adopted from the Pennsylvania code, and the courts of that state have adjudicated that under it the lands of a decedent may be sold on execdtion, upon a judgment against the personal representative. With the law, it is insisted, we have adopted the construction of the Pennsylvania courts.

*When a statute has been for a time in force, and certain terms used in it are of ambiguous import, to which a fixed and settled construction has been given, it is rational to conclude that •a legislature acquainted with the interpretation they had received when they employ the same terms, intended to adopt their received interpretation. This is a rule of construction resorted to ■for the purpose of ascertaining the intention and meaning of the legislature. To give any force to this rule, the'Terms to be interpreted must be of doubtful import, and the legislature emplojnng •them must be shown to have understood distinctly what was their ■settled interpretation. In the case before us neither of these facts exist. There is nothing in the terms of the Pennsylvania law which indicates an intention of the enacting power that the lands of a decedent should be sold on judgments and executions against his personal representative in all places where the personal goods -were insufficient, or without reference to that fact. It is true, as shall be hereafter shown, there are provisions in that law which •might naturally lead to an interpretation of it very different from ■that of our territorial or state enactments; but still there is no ambiguity of expression. There is no reason to warrant the inference that the Pennsylvania interpretation was known to the governor and judges. To be sure, the governor was a citizen of that state, but he was not a lawyer, and was not particularly conversant with the municipal jurisprudence of the state. The judges were natives of other states, whose vocations had never led them to become particularly acquainted with the laws of Pennsylvania. It seems to bo straining too much to receive the interpretation of the Pennsylvania courts upon this ground.

Again, where a practice has grown up under a statute in a particular and sovereign jurisdiction, it is no just inference that, if another sovereign jurisdiction ingx-aft the same statute into their code, they intended to ingraft, also, into their practice, the practice founded upon it, in the jurisdiction from whence it was taken. The provisions of the statute may be well adapted to the institutions of the government adopting it. The practice founded upon it may be adverse to these institutions ; and those facts must enter into the determination whether the construction is to be ^adopted or not. This rests upon the decisions of courts, and can not be deduced from the mere fact of enacting the statute. Had the question arisen whilst the Pennsylvania statute was in operation, had it been submitted to the general court, and had they decided that with the statute we had adopted the practice under it, we would not now feel at liberty to say that the practice waB not adopted. But the mere fact of making such sales, unaccompanied with any proofs that the courts acted upon them, other than that of total silence, does not place the question upon this -ground.

It is ux’ged in argument that the statute of Pennsylvania, and those of the territorial legislature of 1802 and of the state legislature of 1805, are in terms substantially the samé. We do not think so.

An analysis of the act of 1805, so far as relates to this subject, has already been given. The first five sections are almost a literal transcript of the territorial act of 1802. The exposition made of the pi’ovisions of those sections, when compared with the Pennsylvania law, shows that a very different system was contemplated. The first difference is, that the Pennsylvania law is, obviously, in the nature of a supplement, providing for subjecting real estate where no sufficient personal estate can be found.” The laws enacted hoi’e contemplate an entire system, providing for all cases of sales upon execution. Hence, the provisions in detail, which emphatically confino the executions to operate upon .the property of the defendant in such manner as to exclude 'all possibility of touching the lands of decedents upon a judgment against the exeeutor or administrator. Without, however, dwelling upon these, there is one essent'al variance between the two enactments that, in our opinion, subverts completely the position that they are substantially the same.

After declaring that for want of personal goods, real estate should be subject to the payment of debts, and providing for the extent in cases where the rents would pay the debt in seven years, the Pennsylvania law directs, “ that if the clear profits of such lands or tenements shall not be found, by inquest of twelve men, to be sufficient within seven years to satisfy the debt or damages in such executions, or if, before the extent be out, any other debts or damages shall be recovered against the same debtor or defeudant, his heirs, *executors, or administrators, which, with what remains due upon such extent, can not be satisfied out of the yearly profits of the lands or tenements so extended, within seven years; then, and in every such case, the sheriff or other officer shall, accordingly, certify the same upon the return of such executions, whereupon a writ or writs of venditioni exponas shall issue forth, to sell such lands and tenements for and toward satisfaction of what shall remain due upon such extent; as also toward satisfaction of all the rest of said debts or damages, in manner as is hereinafter directed concerning the sale of other lands.

This law, which passed in 1704, is understood to have been substituted for a law passed four years preceding, which subjected “ all lands of debtors to sale, on judgments against their heirs, executors, or administrators.” Under the first law no doubt could be entertained that the lands of a decedent could be sold on execution against his personal representative. It became the duty of the courts to frame their judgments and executions so as to cai’ry the law into effect. The form of the judgment, of course, would be that the plaintiff recover his debt, to be levied of the goods and chattels unadministered, and for want of such goods and chattels of the real estate of which the dec edent died seized. The writ of execution would conform to the judgment. Both would be founded upon the law, and clearly sustainable upon principle.

• The law before us omits this provision, and in the first instance gives no substitute. But it nevertheless contains provision for selling the decedent’s estate on a judgment against his executor or administrators, in cases where the rents are not sufficient to pay the debts in seven years.

Note by the Keboktek. — Nor the purpose of ascertaining, as far as practicable, the extent of the practice, alleged to have existed in the first stages of the government, of selling the lands of a decedent on judgments against executors or administrators, I have carefully examined the records preserved in the clerk’s office of Hamilton county. All that remains of the records of the old general court is here preserved. The writs, pleadings, and executions may principally be found. There is also a volume made up of dockets of original writs, cases for trial, and very meager minutes of the business transacted. There is no record made of any of the proceedings.

After an attentive perusal of this volume of dockets and minutes, I can find only ten judgments rendered against executors or administrators, from .the commencement to the termination of the court. During this period, it sat at Cincinnati, Vincennes, Marietta, and Detroit. I can find no vestige of any motion or decision in respect to an execution against executors or administrators. None in any case, except one concerning the distribution of money. Nor do I find, on examining the executions themselves, any indication that questions had arisen upon them respecting the propriety of levying upon the lands of a testator or intestate, upon judgments against the executor or administrator.

The first proposition of the law is, there shall only be a sale where the rents for seven years are not sufficient to liquidate the debts. If they be found insufficient, or if, after the extent, other judgments be rendered against the debtor, “ his heirs, executors, or administrators,” which, with what is due on the extent, can not be satisfied out of the rents in seven years, upon a return of these facts on execution, a vendi. shall issue to sell, upon account of the whole. Here is an express provision for selling the decedent’s real estate upon judgments against his personal representative. And *when this provision is combined with that of the law of 1700, there is no difficulty in accounting for the Pennsylvania practice. But our statutes of 1802 and 1805 contain no similar provision; and even if the construction contended for, had been given to the Pennsylvania law, it must have been abrogated by the territorial law of 1802.

It is admitted in argument that the practice of selling the real estate of the decedent, upon judgments against his personal representative, is without any analogy to support it in the common law. It is admitted that it stands, at best, upon a doubtful construction. The dissenting opinion, referred to by the defendant’s counsel, contends for nothing more. It is admitted the practice was of only a few years’ duration, and confined to a portion only of the territory of the state. With these admissions before us, and with the clear view we entertain that the construction is not tenable upon any safe or sound principle, we can not consent to recognize its obligation. We consider that the judgment and execution conferred upon the officer no power to sell the lands in question. Consequently, his acts could not divest the devisees of their estate under the will. Judgment must accordingly be for the plaintiff.

The judgments exist in the briefest possible notes. Thus, in the case of Taliaferro v. P. Porter, Administrator of George Porter, out of which the *case of Porter and McArthur, 1 Ohio, 99, arose, the following is all that the minutes present:

Nicholas Taliaferro "J v. v Peter Porter, Administrator of George Porter, deceased. J

In Debt.

Judgment, etc.

Debt.............................................................................$933 33

Interest......................................................................... 102 66

Costs.........................................................,.................... 18 61

$1,054 60”

In some of the earlier cases, the judgment against the personal representative contains, in addition to the abbreviation “judgt.,” these words: “of the goods to be administered.” The executions, in some cases, issued direct against the executor or administrator, in some the exigent was to make the money of the goods and chattels of-the deceased, and, for want thereof, of his lands. The minutes and papers contain nothing to evidence any permanent and established practice. On the contrary, they exhibit a mass of confusion, as perplexing as can anywhere be found.

I have also carefully looked over the records of the court of common pleas, from its earliest organization in the county up to August term, 180G. These are comprised in six large folio volumes, containing not all, but the principal of the judgments rendered. Some, confessed without process or pleadings, are not included in it. During this whole period of time, I have found but seventeen judgments recorded as rendered against executors or administrators. Two of these were rendered before August, 1775; six of them after the commencement of 1805.

The earliest judgments are rendered against the executor or administrator personally, and were so entered up to November term, 1795. Prom that period to January term, 1805, the judgments are all technically correct, “to be levied of the goods and chattels of the decedent, in the hands of the representative to he administered.” No judgment is rendered to subject the lands of the deceased. At November term, 1797, in the case of Abbot v. Manning, administrator, the regular judgment was entered, and, upon return of no goods to levy, a sai. fa. was issued against the administrator, to charge him for a devastavit, and, at August, 1798, a technical judgment was rendered against him de bonis propriis. At January term, 1805, upon a scire facias against executors to revive a judgment rendered in the lifetime of the testator, judgment is entered that the plaintiff have execution direct against the executors, as if they were original defendants in their own rights, and such seems to have been the form of the judgments for several succeeding years.

In the case of Kitchell v. Executors of Kitchell, in which the land in controversy between Giay and Askew was sold, judgment was entered August, 1806. The following is an exact transcript of all that is to be found in the clerk’s office concerning- it, except the execution:

M. Brown and Pearsy Kitchell, Executors, etc. “ Calvin Kitchell, Esq.,

“Service acknowledged, amicable suit. I acknowledge judgment for the amount of the notes and interest, to wit: $411.42; costs taxed, $8.48.

“Manassah Bkown.”

“Fi. fa. et lev. fa. issued.”

*The execution runs, that "of the goods and chattels of Luther Kitchell, [485 deceased, in your bailiwick, you cause to be made $411.42, which Galvin Kitchell lately recovered, etc., against M. Brown and P. Kitchell, executors of said Luther, with $8.48 costs, etc., whereof the said executors are convicted, if so much goods and chattels of said executors can he found, and if not, then that you cause the same to be made of the lands and tenements of the said executors.”

This judgment and execution are but common specimens of the loose manner in which the proceedings of these courts were conducted. I add one other, upon account of its peculiar character.

The executors of Isaac Pelty, deceased, at February term, 1801, commenced an action, in their character of executors, against John Orhison. At August term, 1801, the cause was discontinued for want of prosecution. Afterward, to October term, -1804, Orhison sued a writ of sci. fa. against the executors, to appear and show cause why execution should not he awarded against them for the costs. No cause being shown, the following judgment was entered:

“ Therefore, it is considered by the court that the said John Orhison do recover against the said Thomas and Mary, executors, etc., their original costs, to twenty-eight dollars and twenty cents, and also fourteen dollars and twenty cents for his damages, as well by reason of the detention of said costs, as for his costs and charges by him about his suit in this behalf expended, and he have execution thereof, etc.”

Upon this judgment execution issued, reciting and commanding as follows: “That of the goods and chattels of Thomas Gibson and Mary Dupriest, executors of Isaac Felty, deceased, in your bailiwick, you cause to be made forty-two dollars and eighty-seven cents, which John Orhison recovered, etc., whoreof the said Thomas and Mary are convicted, as appears to us of record. Therefore, it is considered that the said John have his execution against the said Thomas and Mary, executors aforesaid, in so much goods and chattels of the said Thomas and Mary, executors aforesaid, as can be found, etc., and if not. then that you cause the same to be made of the lands and tenements of the said Thomas and Mary, executors aforesaid, etc.”

This execution was levied upon a part of the real estate of the testator, Pelty, in virtue of which it was sold and lost to the heirs. No principle of any known law could be thought of to authorize a sale of lands to pay costs created by the executors. Tet, long after the Pennsylvania law had ceased to have effect in Ohio, this sale, unauthorized by it, or by any existing law, was effected.

The facts here stated are collected and published, that the bench and the bar in other parts of the state may he the better enabled to understand the extent, nature, and character of a practice which has been much talked of as having settled a rule of law obligatory upon the courts.


text:
    *J. S. Wills v. Cooper and Parker.
   This cause was adjourned here for decision, from the county of Brown. It was a hill of review, seeking to review and reverse the decision rendered in this cause by this court, in their session of December, 1825. 2 Ohio, 124. The defendants demurred. After hearing argument, the court adhered to their former opinion, and the bill of review was dismissed.


text:
    D. Greene v. J. Dodge and E. Coggswell.
    Motion to amend a general judgment at a subsequent term, so as to make it a judgment for defect in declaration, refused.
    This is the same cause reported in 2 Ohio, 430. It now came before the court upon a motion to amend the judgment, entered generally for the defendants, at December te^pi, 1826, and enter it specially, as predicated upon a defect in the declaration.
    Ewing, in support of the motion,
    insisted, that the judgment actually pronounced, was not upon the case agreed, but upon a defect in the declaration, and that it ought to have been so entered, because, if' so entered, the plaintiff could sue another, but being general, it operated as a bar. He maintained that the object of justice required the amendment to be made, and that the court had power to allow it. He cited 6 Durnf. & East, 1, and 7 Id. 699.
    Goddard and Nye, contra,
    denied the power of the court to allow the amendment. They cited 1 Bac. 164, 166; amen, and Jeo. F. Cro. Eliz. 407; 1 Ohio, 375; Doug. 703.
   Motion refused.


author: By the Court:

text:
    *State of Ohio, for the use of Fulton & Co., v. C. Colerick, late Sheriff, and others.
    In a suit against sheriff’s securities, judgment in an action for a false return against the sheriff, though no notice of the pendency of the suit he given to the securities, is prima facie evidence of the amount to he recovered.
    This cause came before the court, by adjournment from Knox-county. It was an action of debt against Coleriek, who had been sheriff, and his securities. The declaration was on the obligatory part of the bond. Plea, conditions performed. Replication setting out a judgment against Coleriek, as sheriff, at the suit of the plaintiffs, for a false return on an execution sued out by them, upon a judgment in their favor, and put into his hands to be executed. To .this replication the defendants, demurred. Upon argument, the court overruled the demurrer, and neither party demanding a jury, proceeded to assess the damages, in doing which, no evidence was offered or given but the record of the judgment against the sheriff. The defendants moved for a new assessment of the damages, upon the ground that this evidence was not admissible. And this question was adjourned here for decision.
    Silliman, in support of the motion,
    contended that the record of the judgment against the sheriff was not admissible at all, unless it was shown that notice of the pendency of the suit against him was given to the suroties, and an opportunity afforded them to defend it. He cited 7 Cranch, 322; 6 Johns. 158; 1 Stark. Ev. 189; 15 Mass. 6; 5 Bin. 184; 4 Bin. 256, 352; 4 Dallas, 436.

      Goddard, for the plaintiff,
    maintained that the judgment against the sheriff was prima facie evidence, and could only be impeached for collusion or mistake. He cited 4 Wash. 31; 3 Atk. 248; Greens. Vir. 235.
   By the Court:

We take the distinction to be, that where the sureties have notice of the suit, and may, or do make defense, the judgment against the principal is conclusive against them. Where such notice is not given, the judgment against the ^principal is prima facie only. It may be impeached for Collusion, or for mistake. But, until so impeached, it is sufficient to entitle the ¡plaintiff to recover the amount for which it is rendered. This court have so ruled in the case of Commissioners of Brown Co. v. Butt, in error, 2 Ohio, 347. And we see no reason to be dissatisfied with the opinion then given. In this case no evidence was offered by the defendants. The motion for a new assessment of damages is overruled.


text:
    Robert Rogers and F. Hatton v. John Allen.
    Assignment to trustees by an insolvent debtor in Pennsylvania, under the laws of that state, does neither pass the legal title to the trustees, nor ereate an equity to be enforced in chancery, to lands situate in Ohio.
    This cause was adjourned hero for decision, from the county of Clermont. It was a bill in chancery, making the following ease:
    Allen, the defendant, became insolvent in the State of Pennsylvania, and, in taking the benefit of the insolvent law of that state, made an assignment to the complainants, as trustees, of all his property, both real and personal. Among the property surrendered, in his schedule, was a tract of land in Clermont county, Ohio. The trustees made a sale of this land, and the purchaser took possession. Allen brought an ejectment and recovered. This bill was brought by the trustees, reciting the facts of the case, alleging that the other property assigned was insufficient to pay the debts of Allen, and paying a decree to sell the land in Clermont, for the benefit of the creditors. The defendant demurred.

      T. R. Ross, for the respondents,
    argued that the assignment in Pennsylvania conferred no title, legal or equitable, upon the trustees to land situate in Ohio. Ho cited 5 Cranch, 302; 2 Ohio, 235.
    A. H. Dunlavy, for the complainants,
    submitted the cause without argument.
   *By the Court :

' The Supreme Court of this state decided, in the case of M’Cullock’s heirs v. Rodrick, that the assignment of an insolvent’s effects, under the laws of Pennsylvania, did not vest the trustees or assignees with the legal title to lands in Ohio. We are entirely satisfied with that decision. In order to give effect to such an assignment, where lands situate in a different state are included, the insolvent should be held to make a formal deed of conveyance to the trustees. If this is not done, no title passes.

The bill here assumes that the assignment created an equity in the complainants, which a court of chancery should enforce. But we can perceive no principle upon which this doctrine can be safely founded.

It is a well-settled doctrine that a commission of bankruptcy vests in the trustees the personalties, whether situate within the jurisdiction that grants the commission or not. 4 Johns. Ch. 460. It seems to be equally well understood that these commissions do not affect real property out of the jurisdiction where they issued. It is so adjudged in the House of Lords, in 1814. 2 Dow. 230. And this doctrine stands upon the clear principle that real estate in every country can only be affected or transferred according to the municipal law. As, in this case, no title passed at law, we do not see any principle upon which an equity can be created to be enforced here. The bill must be dismissed.