Henry v. Wilson

• Decision Date: 30 April 1882
• Citation: 77 Tenn. 176
• Parties: J. S. Henry v. J. D. Wilson.
• Court: Tennessee Supreme Court

77 Tenn. 176

J. S. Henry

v.J. D. Wilson.

Supreme Court of Tennessee.

April Term, 1882.

FROM HENRY.

Appeal from the Chancery Court at Paris. JOHN SOMERS, Ch.

COLE & SWEENEY for Complainant.

J. N. THOMASON for Defendant.

COOPER, J., delivered the opinion of the Court.

Ejectment bill, the complainant claiming title under an execution sale of the land as property of the defendant. The execution was issued on a justice's judgment, and levied upon the land on August 23, 1875. The papers were returned to the circuit court, and at the January term, 1876, an order of condemnation was entered. At the September term, 1876, the order of sale was renewed. On November 23, 1877, an alias venditioni exponas issued, under which the land was sold to the complainant on December 31, 1877. The sheriff's deed bears date July 22, 1879. Both in his return and in his deed, the sheriff states that the sale was made after having advertised and given notice as required by law. The defenses relied upon by the defendant in his answer, and insisted upon by his counsel in argument, are:

First. That the venditioni exponas, under which the sale was made, issued without authority of law.

Second. That defendant had no notice of the time and place of sale.

Third. That defendant was residing on the land with a wife and two children at the time of the levy of the execution, the debt on which the judgment was recovered having been created in 1874.

The ground of the first of these defenses is, that the record of the condemnation proceedings shows no renewal of the order for a venditioni exponas after the September term, 1876. But a venditioni exponas is an execution: Rogers v. Jennings, 3 Yer., 310;Webb v. Armstrong, 5 Hum., 379. The order for its issuance stands like the order for a fieri facias in an ordinary judgment. At common law, the fieri facias was required to be issued from term to term, but this requirement was so much a matter of form that if a lapse occurred, the judgment plaintiff might make the entry on the judgment roll nunc pro tunc. Even the form has been abandoned in this country, and the execution issues, as of course, as long as the party is entitled to it.

The second defense is sustained by the defendant's testimony alone, against which is not only the presumption of law that the officer did his duty, but his return on the execution, and the recital of the deed to that effect. And it has been settled on the soundest principles of public policy, that the testimony of one witness, and a fortiori, if that witness be the party interested, will not suffice to impeach an officer's return: Hunter v. Kirch, 4 Hawk., 277,Mason v. Miles, 63 N. C., 565; Driver v. Cobb, 1 Tenn. Ch., 490. “It would not do,” says this court, “to set aside the official acts of officer's upon the simple denial of the party himself, unsupported:” Tatum v. Curtis, 9 Baxt., 360.

The defendant's case rests, therefore, upon the claim of homestead. The proof is, that for several years before 1874, and for...