Hayden, &C. v. Dunlap

• Decision Date: 17 November 1813
• Parties: Hayden, &c. <I>vs.</I> Dunlap.
• Court: Kentucky Court of Appeals

6 Ky. 216

Hayden, &c. vs. Dunlap.

Court of Appeals of Kentucky.

November 17, 1813.

Opinion of the Court by Chief Justice BOYLE.

THIS was an ejectment. On the trial, the plaintiff, to prove his title, produced in evidence a regular chain of conveyances from the patentee of the commonwealth to the defendant Hayden, and the record of a judgment and execution against him, together with a deed from the sheriff to the plaintiff for the land in controversy, purporting to be made to him as the purchaser at the sale under the execution. To avoid the conveyance from the sheriff to the plaintiff, the defendants offered to prove that the sheriff did not advertise the sale according to law, nor give notice to the defendant. Hayden, then a resident of the county where the land was situated, of the day and place of sale; that the sheriff at the day of sale declared that the sale would not be legal, and at first refused to proceed to sell, but was afterwards induced to sell by the plaintiff in ejectment, who was the agent of the plaintiff in the execution, and who gave to the sheriff a bond of indemnity, and became himself the purchaser. They also offered to prove that Hayden, the defendant in the execution, had, at the time it was levied upon the land, a sufficiency of personal estate to satisfy the execution; but the court refused to receive the testimony: to which opinion of the court the defendants excepted, and a verdict and judgment having been given against them, they have appealed to this court.

The only material question in this case is, whether the evidence offered by the defendants and rejected by the court below, was admissible or not?

In the examination of the question, we will consider — 1st, Whether the violation or failure of duty in the sheriff in taking land when there was sufficient personal estate to satisfy the execution, or in not advertising and giving notice to the defendant in the execution of the time and place of sale, is in itself sufficient to vitiate the sale?

And 2d, Whether when accompanied with the other circumstances offered to be proven, such a violation or failure of duty on the part of the sheriff, does not render the sale voidable, and is not an available defence at law?

The first point depends upon the correct construction of the "act subjecting lands to the payment of debts." By the first section of that act it is enacted "that lands, tenements and hereditaments shall and may, by virtue of writs of fieri facias, be taken and sold in satisfaction of all judgments, in manner hereinafter prescribed." The subsequent sections, among other things, provide that the sheriff or other officer shall make the debt or damages first of the personal estate, next of the slaves, and lastly of the lands; and prescribes when lands are seized the mode of advertising and giving notice to the owner or his agent, of the time and place of sale. As, prior to the passage of this act, lands were not liable to be taken and sold by virtue of a fieri facias, and as the act has made them liable in the manner therein prescribed, it is argued on the part of the defendants that a seizure and sale not made in strict conformity to the manner prescribed by the act is void. Though the premises in this argument must be admitted to be correct, the conclusion attempted to be deduced from them does not necessarily follow. The intention of the legislature should in all cases govern in the construction of a statute; but that intention should be collected, not from the phraseology of any particular part, but from the whole statute taken together. However plausible the construction contended for may appear, when the language of the first section alone is adverted to, we apprehend it will not be found to be correct, if the whole context of the law be taken into consideration. In some instances, the act in question has expressly declared that for a failure of the sheriff or other officer to comply with certain requisitions, the sale shall be void. Thus by the 6th section it is provided, "if the party against whom a judgment shall be entered, have several parcels of land in the same county, he or his agent may by a writing under his hand, at any time before the day of sale, require the sheriff or other officer having the execution, to make the debt, &c. of such parcels as the owner or his agent may think proper; and if the parcels be in different counties, the clerk may, at the like request in writing, direct the execution to the sheriff of any county which the party or his agent (making oath that he hath land there) shall particularly mention: and if the debt, &c. shall be made of any other parcel of land, or of land lying in any other county than that mentioned in such written requisition, the sale shall be void." So in the latter part of the same section, the sheriff or his deputy is restrained from purchasing lands sold by him under a writ of fieri facias; and it is declared that the property of that which is so purchased by him, or any other to his use, shall not be thereby changed, &c. But for a violation of the duty of the sheriff in seizing lands where there is a sufficiency of personal estate to satisfy the demand, or for a failure to advertise according to law, or give notice to the party of the time and place of sale, the law has not declared the sale to be void, but is upon this subject wholly silent. The intention of the legislature that the sale should not be vitiated for a violation or failure of the sheriff in his duty in these respects, seems to be strongly, if not necessarily implied by their silence upon this subject, and by their express declaration that for a violation of his duty in other respects the sale should be void. For why, it may be asked, have they made different...