Glasgow's Lessee v. Smith

• Citation: 1 Tenn. 144
• Parties: GLASGOW'S LESSEE v. SMITH AND BLACKWELL.
• Decision Date: 31 May 1799
• Court: Tennessee Circuit Court

1 Tenn. 144

GLASGOW'S LESSEE

v.SMITH AND BLACKWELL.

Superior Court of Law and Equity of Tennessee.

May, 1799.

[ S. C., infra, 233.]

Ejectment--Common rule, not guilty, and issue.--The lessor of the plaintiff claimed, under a grant from the State of North Carolina, to Stockley Donelson, for fifty thousand acres of land, dated the first of January; 1795, and a deed from Donelson to the lessor of the plaintiff, dated the twelfth of August, 1797.

The defendants claimed under the same grant, and a deed made by Henry Brazeale, deputy sheriff of Knox county, to the defendant Smith, dated on the nineteenth of September, 1799, for the same fifty thousand acres of land. The sheriff's deed was made under the authority, as it recited, of three judgments: one, Douglass against Donelson, obtained at April term of Hamilton District Court, 1795; an execution issued upon this judgment for costs; another, Donelson's Lessee v. Renfroe: judgment for costs at October term, 1794, of the same court; and the third, Lyon v. Brown, in which Meek came into court, and, in the name of Stockley Donelson, assumed costs at April term, 1796. Executions issued against Donelson upon each of these judgments, which came to the hands of the sheriff of Knox, who put them into the hands of his deputy. In virtue of these executions, the deputy, on the sixteenth of September, 1799, sold the said land at public vendue, when Smith, one of the defendants, became the purchaser. Returns were made on the executions of Douglass v. Donelson, and Donelson v. Renfroe, but no return on the one of Lyon v. Brown. The land was sold for twenty-eight dollars; the judgment in the case of Douglass v. Donelson, for costs, was twenty dollars, eighty-two and two-third cents, but by running of executions, the execution, when the land was sold, amounted to twenty-four dollars, four cents; that of Donelson v. Renfroe, to twenty-two dollars, eighty-three cents. The return upon the execution of Douglass was “levied upon fifty thousand acres of land, and sold: part of the money to be applied to the extinguishment of the execution, Donelson v. Renfroe, the balance towards the discharge of this execution.” There was also a similar return made upon the other execution.

Whiteside, Williams, and Trimble objected to the reading of the deed from the deputy sheriff upon three grounds: first, the judgment did not authorize the executions which issued; secondly, if it did, the deputy sheriff had no authority, by law, to execute a deed; thirdly, land or real estate can not be sold under a judgment for costs.

As to the first, the deed recites the sale to have been made by virtue of three executions mentioned above; now, it is evident that no execution could rightfully issue upon the judgment in the suit, Lyon v. Brown, in consequence of Donelson's assumpsit of costs. Admitting for a moment that Meek was authorized to do it, Donelson could not in this way be admitted a party to the record; it therefore follows that any sale made by virtue of this execution must be void, as well as the sheriff's deed made under it.

This, however, is not the principal point in this part of the case; the returns upon the two executions show that in reality the sale was made upon the execution, Donelson's Lessee v. Renfroe, though the return upon the execution, Douglass v. Donelson, states that is was levied and sold, &c., it then states that twenty-two dollars eighty-two cents was to be applied to the discharge of the other execution of Donelson's Lessee v. Renfroe. This suit was dismissed, upon which the clerk issued execution against Donelson; this he had no right to do without some order of court; he could only issue execution against the nominal plaintiff. The deed therefore is defective, because it recites that the land had been sold by virtue of three executions, two of which were absolutely void. It is insufficient, because it appears, in fact, that the land was sold to satisfy the execution in the case of Donelson's Lessee v. Renfroe, and not in that of Douglass v. Donelson, which is the only one of these three that can be called an execution. Land can not be sold upon an execution for costs; an injunction in chancery will not lie against an execution for costs, it can not be considered a debt, and therefore can not be a lien upon property.

The returns on the executions do not show to whom the land was sold, and that is necessary, otherwise the sheriff's deed can not avail, agreeably to the decision in the case of Deaderick's Lessee v. Tipton, at Jonesborough, about twelve months ago.

The deputy sheriff can not make a deed; an ordinary deputation will not give power to execute a deed, it is not like the usual acts of a sheriff, it is attended with more solemnity, and properly, for it is the act by which the real property of an individual is divested, and it is the first act to that effect. It is the common understanding of the country that a deputy sheriff can not make a deed for the land; it must be done by the high sheriff. Communis error facit jus, is a maxim which applies to this case. If there were no adjudications on the subject, October, 1784, c. 7, section 10, shows this to be the sense of the Legislature. The language of this section is that the sheriff shall make deeds,--it does not mention deputy sheriffs. There is no doubt of the common law on this subject; it is expressly laid down that all acts of the deputy must be in the name of the principal; the sheriff may remove his deputy, but can not abridge him of any part of his power. 4 Bac. 437; Wood's Inst. 74; Salk. 96, shows that the authority of a deputy may be revoked, as in the case of other attorneys, but that all returns must be made in the name of the high sheriff. In England, lands are not liable to be sold, consequently sheriffs have no deeds to make; if they had, the cases with respect to returns by deputies clearly evince that it must be in the name of the principal sheriff.

Campbell and Scott, in answer.--The situation of deputies here and in England is not the same; our law requires deputies to be sworn. But taking the case on the ground it stands in England, the law gives all the ordinary powers of a sheriff to his deputy, and there is no reason for excluding the power of making deed. An individual can authorize another to make a deed, why should not the law authorize a deputy sheriff to make a deed for his principal for land which he himself has sold? The deputy, acting as deputy, is acting in the name of the sheriff; writs are not directed to the sheriff by name. In Wood's Inst. 74, the reason is given why it is necessary for returns to be made in the name of the high sheriff, he is a sworn officer. Salk. 96 shows clearly that the power of the deputy can not be restrained by covenant. In Hayw. 181, we find a case where the return of a subpoena by a deputy was held good; here it did not appear that the deputy was sworn. In the case Smith v. Winton, at the last term, the Court then thought the deputy's deed good, and they had not heard any reason to convince them the law was otherwise.

Whiteside, in reply.--The defendants' counsel rely materially on what was said at the last term, knowing that nothing of a similar nature had ever happened before. It was a hasty opinion upon the spur of the occasion, and had not received due consideration. The power of a sheriff is the same here that it is in England; there is no such difference as has been contended for. Powel on Powers, which has been relied upon, does not apply to the case of principal and deputy sheriff. The cases put there are those of ordinary powers of attorney. The situation of a deputy sheriff is different in many respects from that of an attorney-in-fact. If a general power be given, no execution of it will be good without reciting the power, otherwise of a special power. All writs are directed to the high sheriff, and the return should accord with it; the return should be in the name of the sheriff. How can his acting as deputy refer to Robert Houston, high sheriff of Knox? His name is not mentioned. It is true that writs are directed to the sheriff without naming him, but returns by his deputies are made in his name. The case in Haywood, 181, proves this doctrine. If the law is that a deputy must act in the name of the high sheriff, the deputy must sign the name of his principal, otherwise not good.

If any attorney-in-fact, in the performance of any act committed to his agency, use only his own name, the execution of the power will be void.

The law can not know any person as deputy, it only knows the high sheriff; this is the uniform and prevailing opinion, it was never questioned until now, nor was there ever a deed from a deputy sheriff heard of before this. It has been urged that great mischief would arise if deputies were not allowed to make deeds as well as to execute other duties of a sheriff.

The argument ab inconvenienti is the other way. In ordinary transactions of life an attorney must have a special power to make a deed; one co-partner in trade can not make a deed for another without a special power.

It would be attended with great inconvenience if deputies were permitted to divest rights to real estates; the law never intended to intrust them with such a power. Our Acts of Assembly do not speak of deputies when deeds are directed to be made.

Overton, J., sitting alone (White, J., having been employed as counsel, and Campbell, J., interested in a similar question.)

The first consideration which obtrudes itself upon the mind, is, whether the sale by the deputy sheriff is valid. It is contended that the deputy sheriff may lawfully sell lands, but the difficulty in this part of the case arises from the objection to the validity of the executions recited in the sheriff's deed.

These objections relate however only to the executions which issued in the suits of Donelson's Lessee v. Renfroe, and Lyon against Brown. It strikes me that the...