Farmers' Bank v. Wallace

Headnote

Lands sold bj' the sheriff on a venditioni exponas in execution of a judgment, are discharged in the purchaser’s hands of all judgment liens, whether duo or not due.

Venditioni exponas. The sheriff returned that he sold the land on the 25thofMay, 1841, to Wm. Nickerson, for$460, subject to a judgment at the suit of J. M. Clayton vs. defendant,in the' Superior Court, entered on the 23d of August, 1838, and not sufficient. By leave the sheriff amended this return thus: that ho sold the land to Nicker-son for $1265 44, and the purchaser to pay that amount to the sheriff, and await the decision of the court as to whether the land is still subject to Mr. Clayton’s judgment; if so, all but $460 to be paid back to him; if not, the sheriff to retain the whole amount, and pay that judgment out of it. And the sheriff prayed the direction of the court on this subject.

obtained a rule to show cause why the sale should not be set aside, because, the land was sold subject to this I judgment, and not discharged of it.

-now showed cause. The question is, whether the sheriff selling land on a junior judgment, where I there is an older judgment not yet due, shall self discharged of this I judgment, and apply the proceeds to it, or shall sell subject to the l judgment. It seems to me he must sell subject for these ressons:-lst. To apply the proceeds to- the judgment not yet due, is a viola-1 tion of the contract between the debtor and creditor, the former of| whom is not bound to pay, nor the latter to receive the amount of the judgment before the day fixed by their contract. And as thel creditor cannot be compelled to receive the money, what must be-l come of it? Suppose the judgment not due- for ten years, must the sheriff keep it and pay interest on it? And what security has thel creditor in the meantime? The sheriff’s recognizance is flatly barredl in six years, and before the judgment is d'ue the creditor’s security is gone. 2d. It has been decided that if land be sold' under a mortgage] and there is an elder mortgage, the land' must be sold subject to suchl elder mortgage. This may have proceeded on the ground that mortgage was supposed to divest title; and yet it is uniformly hele that it is a mere security for the payment of money. {Ante 280.1 The purchaser at sheriff’s sale holds the land “as fully and amplj and for such estate, &c.” as the debtor did. (Digest 205.) iTov|

did Wallace hold? Subject to my judgment. He could not pay the judgment, nor could I compel him to pay it.

This land has been sold in a different manner from that in which land has always heretofore been sold. The sheriff proclaimed at the sale that it was sold subject to ■a judgment of J. M. Clayton, amounting to $805 44. On these terms the land sold for $460. It has always been held that a sale on a judgment discharged the land of all other judgments prior or subsequent, and the proceeds are applicable to the judgments in the order of their priority of date, whether due or not. The defendant did not assent to this mode of sale, and no one had the right to say for him what sum was due on this judgment, or to sell his land subject to it. If the land is to be sold subject to a judgment, the amount of which is proclaimed, it must be equally subject to all other judgments in a like condition, whether proclaimed or not; and this at once renders sales by sheriffs liable to all the danger of secret liens, and diminishes the value of the land; for the land always sells better clear of liens.

In the case of Vickory vs. Vickory, the sheriff sold the land of W. Vickory, expressly subject to a recognizance in the Orphans’ Court. [The heirs brought suit against the purchaser under the recognizance pnd failed, because the court held that the sheriff could not sell the land subject. The heirs then sued the sheriff and recovered. And Ihe sheriff filed a bill in chancery against the purchaser and failed. II Harr. Rep. 193.) If it has been the uniform practice to pay off Idl prior judgments out of the sales of land, the case qrust have often happened of the payment of judgments not due.

I Again: the land could not be sold subject to any thing, because it Ivas not levied on, subject; nor inquired on, subject. The sale could lot be otherwise than according to the levy. If this sale be correct, ■he inquiry should have been held in the same way; and then in the lase put by the other side of a judgment not due for ten years, the Imd would rent in seven years to pay the younger judgments, and mere could have been no sale at all. If the defendant is to be sub-fccted, to the injury of having his land sold subject to the old judgment not yet due, he ought to have the benefit of having an inquiry Beld in the same way.

■ As to its violating contracts, these bonds are payable on or before I certain day; the debtor cannot be compelled to pay sooner than Be day agreed on, but he may pay sooner if he choose.

| There is no mode of compelling judgment creditors to exhibit the

amount of their liens, and every sale must be subject to the depreciating apprehension of secret liens. If this sale was illegal it must be set aside, though the amount of the judgment was stated and the purchaser is willing to pay it.

The sheriff was now sworn, and proved that the defendant consented to and desired the sale in this way, to save the sheriff’s dollarage.

The amended return settles every question as to the setting aside the return; for the land was sold and the purchaser and sheriff are both authorized to consider it as a sale for $460, subject; or $1,265 44 clear of the judgment. And the sheriff | has actually received from the purchaser the whole amount of $1,265 44, and now asks the direction of the court as to which mode the law requires the sale to be made, in order to apply the money accordingly. And all this was by the consent of all parties, and by | the request of the defendant, who now objects to it.

But as to the legal question, the case of Vichory and Vichory doesl not settle this question. In that case the recognizance was due, andl it having been decided by the Court of Errors and Appeals, in the! case of Jaquett vs. Lew den, that a recognizance in the Orphans’! Court is a lien from its caption, it was just like an older judgment! due at the time, and which all agree must be paid. There is nothing! in the idea that the sale subject was void because there was no levj subject. In the common case of a mortgage to which the land is always sold subject, there is no instance of a levy or inquiry subject] to the mortgage.