Adams County MsArchives Court.....Van Campen, Mr 1839
************************************************
Copyright.  All rights reserved.
http://usgwarchives.net/copyright.htm
http://usgwarchives.net/ms/msfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines ddhaines@gmail.com December 8, 2005, 12:17 am

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Doe ex dem. Van Campen, Appellant, v. Snyder.

pages 66-69

Quashing an execution will not vitiate a sale of property previously made, in 
pursuance of the execution.

The sheriff cannot be called as a witness to impeach his own return.

This cause was tried at the February term of the circuit court of Adams 
county, 1838, before the Hon. George Coulter, and came up on appeal.

The action in the court was ejectment.

The record shows that one Girault obtained a judgment in the circuit court of 
Adams county, against one William Vannersen. That a fieri facias issued upon 
that judgment which was levied upon the land in question; and on the day of 
sale the defendant in error became the purchaser of the sheriff.

Subsequent to this sale by the sheriff; a motion was made to quash the fieri 
facias under which it was made. This motion finally prevailed. The plaintiffs 
below offered to prove the success of the motion by the minutes of the court, 
which was objected to on the part of the defendant in error, and rejected by 
the court, to which rejection a bill of exceptions was taken and filed.

The said plaintiffs further offered to prove by Horace Gridley, the sheriff 
who made the said sale, that at the time of such sale the said fieri facias 
was fully satisfied. This evidence the court refused to admit.

And then the plaintiffs offered said sheriff to prove that, after the property 
in question had been struck off to Snyder, Vannersen the defendant in 
execution gave him notice not to pay his money or take a deed from the 
sheriff, on the ground that the sale was illegal and void. This also the court 
refused to admit, which opinion was excepted to, &c. 

Those are the only matters in relation to which any question is made in the 
assignment of errors, except one upon a motion for a new trial.

Webber and Vannerson, for the appellants.

Winchester, for appellee.

The only question is, was the evidence properly rejected?

For the defendant, it is contended it was.

This court at this term has decided, that the circuit court has no 
jurisdiction to set aside a sheriff's sale, upon motion, so as to defeat the 
title of a purchaser.

If an execution be returned, and endorsed unsatisfied, though in fact paid, an 
alias issuing after it is regular. Luddington v. Peck, 2 Conn. Rep. 700.

A bona fide purchaser of lands under an execution issued upon a judgment which 
had been paid, but on which no satisifaction had been entered of record, nor 
an execution returned, would be protected in his purchase. Saunders v. 
Caldwell, 1 Cowen, 622.

In ejectment by a purchaser at sheriff’s sale against the defendant in 
execution, the latter cannot question the title; for the sheriff in making 
sale stands in the situation of attorney to the defendant. Cooper v. 
Galbraith, 3 Wash. C. C. Rep. 546.

Judgment reversed; sale of goods under execution before reversal shall stand. 
Comyn, tit. Execution (C 3;) 5 Co. 90 b; 2 Cro. Jac. 46; Dyer, 363, a; Yelv. 
180.

It is not the course of the law to try the title of any loan, between 
strangers, when he that hath the title is not a party. 1 Plowden, 54.

Even in Kentucky, where a statute authorises a common law court to set aside a 
sale under execution, upon motion, and clothes it with necessary powers, the 
quashing a sheriff’s return and execution thereon, does not per se set aside 
the sale. Schober v. Denman, 2 Littell, 117.

The title of a bona fide purchaser is not defeated for error or irregularity 
in the judgment or execution, or on the ground that the levy was not made 
until after the return day of the writ. Jackson v. Renwell, 13 Johns. Rep. 97.

It would be very hard if it were at the peril of the purchaser whether the 
proceedings were regular or not. 1 Ves. 195; 2 Tidd’s Prac. 936.

Sheriff’s sale of a term of years under an execution grounded on a testatum 
where none was filed, which execution is void. Yet a sale of the term, which 
is worth $1000 for $100 is good. Upon reversal the defendant in execution 
shall never have the term again, for it is the folly of the party, that he did 
not pay the judgment; and if such sales should be avoided none would buy at 
sheriff's sales. Good et al. v. Hence, Yelv. 180.

Sheriff's sale legal as to purchaser, if fieri facias, levied before the 
return day, though sale is after it, and the writ never returned. Wheaton v. 
Sexton, 4 Wheat. 50; 4 Cowen, 585, 464; 1 Cowen, 622; 2 Term Rep. 44; 2 Murph. 
507. 250; 15 Johns. Rep. 537; 1 Johns. Cha. Rep. 153; 1 Johns. Rep. 45,n; 2 
Bac. Abr. 231; Cro. Eliz. 334; S Cowen, 143, 176.

Gridley’s testimony, offered to prove that the execution had been satisfied 
before the sale, was properly rejected.

1. Because the return on the execution is the best evidence, and that return 
could not be contradicted by parol evidence.

2. Because if there had been a satisfaction, and it had not been so returned, 
the purchaser would be protected in his title. See cases of Luddington v. 
Peck, and Saunders v. Caldwell above cited.

It was an attempt to compel Gridley, (who was the sheriff,) to testify as a 
witness to contradict his own return.

Mr. Justice PRAY delivered the opinion of the court.

We have no hesitation in laying down the general rule, that the quashing of an 
execution cannot defeat a sale previously made in pursuance of it.

In a case of ejectment by the purchaser at sheriff’s sale against the 
defendant in execution, reported in 3 Wash. C. C. Rep. 546, it was held, that 
the latter cannot question the title; for the sheriff in making sale stands in 
the situation of attorney to the defendant. Even when a judgment has been 
reversed, a sale of goods under execution before reversal shall stand. Comyn, 
tit. Execution (C 3;) 560, 906; 2 Cro. Jac. 46; Dyer, 363, a.

In the second place, we regard the position taken as clearly untenable. It is 
in fact presenting the sheriff as a witness to impeach his own return. Even if 
the judgment had been paid as alleged, the authorities cited at bar establish 
the position, that an execution, if returned, and endorsed unsatisfied, though 
in fact paid, an alias issuing after it, is regular. Luddington v. Peck, 2 
Conn. Rep. 700. And a bona fide purchaser of lands under an execution issued 
upon a judgment, which had been paid, but on which no satisfaction had been 
entered of record, nor all execution returned, would be protected in his 
purchase. Saunders V. Caldwell, 1 Cowen, 622.

These two points being thus settled, we deem it perfectly immaterial whether 
Mr. Vannersen did or did not give the notice stated in the bill of exceptions. 
The sale being a good one, his notice could have had no effect upon it.

The opinion of the court below, in relation to the matters contained in the 
bill of exceptions having been sustained by this court; and these matters 
being all that could have been urged for a new trial, it follows as a 
necessary consequence that we are satisfied that the court below was right in 
refusing it.

The judgment below must be affirmed with costs.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

File at: http://files.usgwarchives.net/ms/adams/court/vancampe31wl.txt

This file has been created by a form at http://www.poppet.org/msfiles/

File size: 8.0 Kb