Bybee v. Ashby

• Decision Date: 31 December 1845
• Citation: 1845 WL 3918,7 Ill. 151,2 Gilman 151,43 Am.Dec. 47
• Parties: THOMAS T. BYBEEv.JAMES ASHBY.
• Court: Illinois Supreme Court

2 Gilman 151

7 Ill. 151

1845 WL 3918 (Ill.)

43 Am.Dec. 47

THOMAS T. BYBEE

v.JAMES ASHBY.

Supreme Court of Illinois.

December Term, 1845.

OPINION TEXT STARTS HERE

EJECTMENT, in the Fulton circuit court, brought by the plaintiff in error against the defendant in error. The cause was heard at the March term, 1844, before the Hon. Jesse B. Thomas and a jury, and a verdict rendered in favor of the defendant, on which there was a judgment for costs.

The procedings at the trial, and other material facts appear in the opinion of the court.

W. A. MINSHALL, for the plaintiff in error, submitted the following argument in writing:

It will be insisted by the counsel on the other side, that the rule protecting innocent purchasers does not apply as between these parties, and that Bybee is seeking to take advantage of his own negligence, and that, inter partes, defects in the execution may be inquired into collaterally in this action, and cites Jackson v. Caldwell, 1 Cowen, 643-4. The case cited does not maintain the position laid down, to anything like the extent contended for there. The court decided in that case that a bona fide purchaser of lands on an execution issued on a judgment which had been paid, but on which no satisfaction is entered of record, nor the execution returned satisfied, would be protected. But otherwise, if he had notice either actual or presumptive. But if the party to the execution purchase, he will not be protected, for he is chargeable with notice; he would be most apt to know whether the money had been paid or not. This is a very different case from the one at bar.

The only question in this case is, was the execution, which, by the misprision of the clerk, was directed on its face to the sheriff of Knox, but in fact sent to, and delivered to the sheriff of Fulton to execute, the sheriff of Fulton being the proper officer, and the defendant, Ashby, and his property within his bailiwick, is void or voidable. On this point, on an execution exactly similar, and in point as respects the direction and misprision, the execution being, as in this case, directed to a different county than the one in which it was to be executed, the court held the execution voidable only, and amendable, and subjected the sheriff to liability for the act of his deputy under it. Walden v. Davidson, 15 Wend. 575, 579, 580.

It is insisted that Bybee is endeavoring to take advantage of his own negligence. But this assertion applies with more force to Ashby here than Bybee. Ashby is estopped from making this allegation now. He could have set the execution aside for the irregularity. He chose not to do so, but acquiesced, and permitted the sale to take place. The sheriff elected to consider the process valid, and acted under it, and is bound by it. Ashby has done the same thing, he having omitted to stay the sale and set aside the process as he might have done. He has elected to consider the process as valid, and now as to him and all other persons the sale is valid and passes the legal title to Bybee, or any other purchaser at the sale. Shall Ashby now, in this action of ejectment, be permitted to say this sale is void for the misprision of the clerk in the direction of the process, and then reap an advantage by reason of his own laches, not only to the prejudice of Bybee, but also to the prejudice and insecurity of all judicial sales? That some sanctity should be given to judicial proceedings, sometimes limited, beyond which they should not be questioned; some protection offered to those who purchase at sales by judicial process, and some distinct rule established by which property thus acquired may be transmissible with security to the possessors, can not be denied. Voorhees v. Bank of the U. S., 10 Peters, 450.

Much effort is made by the opposing counsel, and many refinements and nice distinctions resorted to, and many authorities cited to get rid of the case in 15 Wendell. But the case is not single, or singular only in this, that it is identical and in point with the case at bar, and in principle is supported by the doctrine in 10th Peters, and other cases from the U. S. court, and New York.

The purchaser at a sheriff's sale depends on the judgment, the levy and the deed. All other questions are between the parties to the judgment and the officer. Wheaton v. Sexton, 4 Peters' Cond. R. 521; 6 Wend. 523-4.

A variance between the execution and the amount recovered, held not material. Hunter v. Page, 4 Wend. 585. It does not affect the validity of the sale under it. Such a variance, when the execution issues from a court of record, is amendable at any time, as well after as before the sale, and can not be taken advantage of on a trial for the recovery of the premises. Swan v. Saddlemere, 8 Wend. 676.

Also, under an execution, a purchaser can not be defeated for error, or irregularity in the judgment or execution, on the ground that no levy was made until after the return day. Jackson v. Rosevelt, 13 Johns. 101, 102.

In an action of ejectment against a purchaser of land under a sheriff's sale, the regularity of an execution can not be inquired into. An execution issued after a year and a day, without any scire facias, is only voidable at the instance of the party against whom it issued. Jackson v. Rosevelt, 13 Johns. 101, 102, above cited, and 8 Johns. 361, 367.

The sale is not void, when judgment reversed, or set aside for error; otherwise for irregularity. For difference between error and irregularity in process, see Woodcock v. Bennett, 1 Cowen, 734, 742.

Ashby, not having availed himself of his privilege and right to set this execution aside at his instance, can not now avail himself of this objection. Jackson v. Rosevelt, 13 Johns. 101, 102.

Our act of 1841, 171, § 7, makes the sheriff's deed prima facie evidence that the provisions of the law in relation to the sale were complied with. Shall Ashby now, after the making of the deed, and after an amendment made by the court of the process in the particular complained of, or without such amendment, be permitted to avail himself of so frivolous and technical an objection to defeat a title acquired under a sheriff's sale, in the action of ejectment?

But will the court now go behind the amendment made by a competent court having jurisdiction over the subject, and having exercised that jurisdiction, the power being discretionary, unless the court here clearly see that the execution was absolutely void, and gave no authority to the officer to act, or the court to amend? For these reasons, and on the authority cited, we rely to reverse the judgment below.

N. BUSHNELL, for the defendant in error, filed the following argument in writing:

Was the sale valid, and said execution and deed, with or without amendment, effectual to pass the estate?

To authorize the admission of the sheriff's deed in evidence, it was necessary first to produce the judgment and execution under which the sale had been made. Without a valid judgment and execution, the sheriff would have had no authority to sell. Bowen v. Bell, 20 Johns. 338; Wheaton v. Sexton, 4 Peters' Cond. R. 521; Wilson v. Comire, 2 Johns. 280.

At the time of the sale, there must have been a valid, subsisting authority to sell; this is the burden of all the cases. Jackson v. Pratt, 10 Johns. 381, 386; Swan v. Saddlemere, 8 Wend. 681; Jackson v. Caldwell, 1 Cowen, 641, 643-4.

The power of the sheriff is derived from the execution, and the authority of the execution to warrant the sale is derived from the statute. It is the same, whether the sheriff sells with an execution which gives him no power, or whether he sells without an execution at all; in either case the sale is void. Armstrong v. Jackson, 1 Blackf. 210.

An officer, acting under process, is bound to see that the process is regular on its face. Sanford v. Nichols, 13 Mass. 287.

Where a justice of the peace was authorized to issue an execution returnable in ninety days, and he issued one returnable in sixty days, it was held to be a nullity. On another question being raised in this case as to a variance, the court held that mere variance between the judgment and execution is, in general, amendable; yet this is on the ground that an execution is merely voidable, not void. No case can be found where a void execution can be amended, or a void sale confirmed. Loof v. Bentley, 5 Wend. 276.

The application of Bybee to amend, is an admission that the sale was considered invalid, and the amendment of the execution as directed by the Knox circuit court is relied on to confirm it. Now, an execution may be irregular, or merely erroneous. The latter is voidable only; it is good till set aside, and will be a justification to the officer, and will sustain rights acquired under it till that time. But an irregular execution is void ab initio, and no rights can be acquired under it. Woodcock v. Bennett, 1 Cowen, 735-6; Russell v. Kip, 5 Johns. 99, 100; Read v. Markle, 3 Johns. 523; Parsons v. Lloyd, 3 Wilson, 345.

To amend an execution implies that there is some defect in the execution itself. This defect, I apprehend, can become apparent but in two ways; either from some defect of form apparent on the face of the execution, or from some incongruity between it and the judgment on which it issues. It is to supply or correct these defects that the amendment is made. These amendments apply only to voidable executions; they relate to mere matters of form, clerical misprisions, etc., defects, which objectionable in point of form, still leave it evident that there was a valid, substantial authority to sell in the officer acting under it. Swan v. Saddlemere, 8 Wend. 676, 679; Russell v. Kip, 5 Johns. 99, 100.

These are the classes of cases contemplated by our statute, which relate to formal, not substantial defects; cases in which there can be no difficulty, for the reason that there is always something to amend by. Russell v. Kip, 5 Johns, 99, 100; Larocke v. Washbrough, 2 T. R. 37; Atkins v. Sawyer, 1...