Elliott v. Knott

Execution was issued upen a judgment more than three years from its date, and after the death of the defendant, and without revival by sci.fa., under which the land of the deceased defendant was levied on, and sold at sheriff’s sale, and pnrchased by the plaintiff in the judgment. Many years afterwards, the defendant’s heir at law, who was an infant at the time of the execution and sale, brought ejectment for the land. Held: That the execution, so issued, was voidable and not absolutely void, and the purchaser, therefore, acquired a valid title to the land. Courts of justice guard and maintain, with jealous vigilance, the titles of purchasers acquired under judicial sales. The question of irregularity, in the issuing of a writ of execution, can never be discussed collaterally in another suit. To enable the sheriff to sell land, and vest a valid title in the purchaser, a seizure is indispensable, and, without a valid seizure, the purchaser acquires no title. The names “Penryn” and “Pennyrine,” in the absence of all proof to show that they belong to different tracts of land, should be regarded as' applicable to tbe same, and as idem sonans.

Appeal from the Circuit Court for Saint Mary’s County. Ejectment brought on the 16th of July 1852, by the appellants, against the appellee, for a tract of land called “Pennyrine,” containing two hundred acres. Plea, non cut. 1st Exception. The plaintiffs proved that the land in controversy was originally in the possession of the widow of Charles Llewellin, as the guardian of her children, and was owned and occupied by them: that there were at first five children, but all the others died without issue, leaving John Llewellin and William H. Llewellin, the two survivors, the latter of whom also died without children, and the former died' in possession of the land, on the 24th of November 1826, leaving a widow and a posthumous child, born on the 12th of January 1827, and who afterwards married the plaintiff, Johnson Elliott. They then, for the purpose of showing that John Llewellin had purchased the interest of William H. Llewellin in said land, offered in evidence the record of a judgment recovered against William H. Llewellin, in St. Mary’s county court in 1822, and execution issued thereon on the 5th of May 1825, and the return thereto, by which it appears that the tract of land called “Pennyrine,” containing two hundred acres, more or less, was levied on and sold on the 19(h of July 1825, at sheriff’s sale, to John Llewellin, for $800. They further proved, (hat Francis Knott, the defendant’s father, at the time of John Llewellin’s death, lived about two' miles from the latter’s residence, but that said John died at the' head of the bay, about six miles from the residence of said Knott, and then rested. The defendant proved that from 1844, after the death of F„ Knott, who died in 1843, the defendant, as his only child and heir, took possession of, and claimed title to, the land in controversy, by virtue of a purchase by said F. Knott, under judicial sale in 1829, under execution issued the 14(h of October 1828, against William H. Llewellin, John Llewellin, and others, “it being conceded that the land sold under the said execution is the same land in controversy in this suit, ’ ’ and for the purpose of deducing his title through them, offered in evidence certain documentary proof, consisiing of the record of the judgment, and writs of execution, and (he returns thereto. This proof shows that an action of debt was brought by Francis Knott against William H. Llewellin, on the ] 5th of July 1822, in which a judgment was confessed in favor of the plaintiff, in St. Mary’s county court, on the 6th of August 1823, for $295.83§, with interest from the 27th of November 1821, and costs; that on the 29th of September 1823, this judgment was superseded by a supersedeas judgment to said Knott, confessed before two justices of the peace, by William H. Llewellin, John Llewellin and Gustavus Brown, enforceable on the 29th of March 1824, and filed in the county court; that on this supersedeas judgment an appeal was taken to the Court of Appeals, and on the 16th of July 1825, this judgment was affirmed by that court and judgment rendered as in the county court; that on the 14th of September 1825, the said William H. Llewellin, John Llewellin, Gustavus Brown, together with Richard H. Miles and Thomas Brown, confessed another supersedeas judgment to Francis Knott, before two justices of the peace for St. Mary’s county, for the amount of the original judgment, with the additional costs recovered in the appellate court, which was filed in the Court of Appeals on the 22nd of October 1825, and was due on the 14th of March 1826; that on the 18th of April 1826, two writs of ji. fa. were issued out of the Court of Appeals on these judgments, the one against William H. Llewellin, John Llewellin and Gustavus Brown, and the other against the same parties and Richard H. Miles and Thomas Brown, both returnable to the succeeding June term of that court, and both were levied upon a tract of land called “Penryn,” containing two hundred acres more or less, and returned, “on hand by consent.” And on the 22nd of December 1826, two corresponding writs of vendi exponas were issued returnable to the following June term of the Court of Appeals, to which the sheriff made return, that the land called “Penryn,” which had been taken under the writs of fi. fa. had been sold under an elder judgment; that on the 14th of October 1828, two other writs of fi. fa., on these same judgments, were issued out of the Court of Appeals, tested the 9th of June 1S28, and returnable to the following December term of that court, one of which was also against William Llewellin, John Llewellin and Gustavus Brown, and the other against the same parties and Richard H. Miles and Thomas Brown, and the return to each wras: “Laid as per schedules, and land sold to Francis Knott, the 28th of November 1828, for fi550, and plaintiff satisfied as receipt.” The schedule referred to in the return to the first writ, describes (he land as “one tractor parcel of land called Penneyrun, containing one hundred and sixty acres, more or less;” and the other schedule describes it as “one tract or parcel of land called Penyrun, containing one hundred and sixty acres, more or less.” To the admissibility of the aforegoing records, for the purpose of showing that any of John Llewellin’s title to the'land in controversy, passed by the sale under such executions, the plaintiff’s objected, and insisted, that John Llewellin being dead before the issue of the executions aforesaid, no title could pass to the purchaser by such sale as against the said child of John Llewellin, but the court (Thos. F. Bowie, Special Judge) overruled the objection, and permitted said records to be given in evidence for the purpose of showing title in the defendant’s father and ancestor, F. Knott., and to this ruling the plaintiffs excepted. 2nd Exception.—Upon the evidence contained in the aforegoing exception, made part of this, the defendant prayed the court to instruct the jury, that under the pleadings in this cause, and upon the evidence before them, if they find the evidence to be true as stated, the plaintiff was not entitled to recover. This instruction the court granted, and the plaintiffs excepted, and the verdict and judgment being in favor of the defendant, appealed.