Gardner v. Sisk

The opinion of the court was delivered, by Strong, J.

Were we of opinion that all the assignments of error are sustained, what could it avail the party who has sued out the writ ? Let it be, as he argues, that the court gave a wrong construction to the Act of April 18th 1861, it is still true that he cannot hold possession of the lot against Sisk, the plaintiff below, unless the sheriff’s sale, professedly made under the judgment of Tindale v. Sisk, was effective to divest the title of the debtor. Gardner has no right except through that sale. And the record, as exhibited to us, shows nothing more than a sale under a fi. fa. without inquisition, and without waiver of inquisition. Such a sale was wholly unauthorized. The writ of fi. fa. conferred upon the sheriff no power to make it. The Act of June 16th 1836 does indeed prescribe that when the defendant in any execution, being at the time of issuing thereof the owner of real estate, shall in writing, filed in the proper court, dispense with and waive an inquisition, the sheriff may proceed to sell upon the writ of fi. fa. without any other writ. But it is only in such a case where there has been such a waiver that a sheriff derives power from a fi. fa. to sell such real estate as this now in controversy. Accordingly it was decided in Baird v. Lent, 8 Watts 422 , that a sale on a fi. fa., where there has been neither an inquisition nor a waiver of it, is absolutely void. To the same effect is Shoemaker v. Ballard, 3 *508 Harris 94, and such a sale is not cured by the acknowledgment of a sheriff’s deed. It is true that in Spragg v. Shriver, 1 Casey 284, where a sale had been made under a writ of venditioni exponas without inquisition upon the land sold, and the proceeds of sale had been applied to the defendant’s debts, and he had surrendered the possession to the purchasers, it was held the sale was good. But on the execution-docket there was an entry: “ Inquisition waived with a reference to another execution.” Besides, the sale was by virtue of a vend, exp., not a fi. fa. This is very far from a determination that a sale under a writ of fi. fa. is good without any waiver of an inquisition written and filed in the proper office. An award of a vend. exp. may perhaps be treated as an adjudication that everything essential to such an award had been done, for the writ is an order to sell, but there is no such adjudication where a sale is made under a fi. fa. It must therefore be, that the sale to Gordonier, under whom the plaintiff in error claims, was entirely void, and if so, it was not made good by the fact that its proceeds were distributed among the creditors of Sisk. That furnishes no basis for an estoppel against him. It was not in his power to prevent such a distribution, and he cannot therefore be prejudiced by it. Notwithstanding some obiter dicta, in Mitchell v. Freedley, 10 Barr 198, and Crowell v. McConkey, 5 Id. 168, it is not the law that a void sale is confirmed by a distribution of its proceeds among the judgment-creditors of the debtor whose land has been thus sold, and neither those cases nor Spragg v. Shriver decide any such thing. Gardner, therefore, acquired no title by the sale of the sheriff under the writ of fi. fa. Of course he could transmit no title to the plaintiff in error; and whether the court was right or wrong in the instruction they gave respecting the Act of April 18th 1861, the plaintiff below was entitled to recover. There can be no reason, then, for reversing the judgment.

Judgment affirmed.