Insurance Company v. Hallock
| Decision Date | 01 December 1867 |
| Citation | 6 Wall. 556,18 L.Ed. 948,73 U.S. 556 |
| Parties | INSURANCE COMPANY v. HALLOCK |
| Court | U.S. Supreme Court |
ERROR to the Circuit Court for the District of Indiana; the case being thus:
In Indiana the distinction between proceedings in common law and chancery is abolished, and under their code one form of action only, the 'civil action,' is known.1 This code provides as follows:
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The proceedings to foreclose a mortgage are the same as in other actions, except that when there is no express agreement in the mortgage, nor any separate instrument, for the payment of the sum secured thereby, the remedy of the mortgagee shall be confined to the property mortgaged, and in that case the judgment of foreclosure shall order the mortgaged premises to be sold, or so much thereof as will satisfy the judgment. If there is a promise in the mortgage, or in a separate instrument, to pay the sum secured, the court shall direct in the order of sale that any balance which may remain unsatisfied after the sale of the mortgaged premises, shall be levied of any other property of the mortgage debtor.2
Section 635 is thus:
'A copy of the order of sale, and judgment, shall be issued and certified by the clerk, under the seal of the court, to the sheriff, who shall thereupon proceed to sell the mortgaged premises, r so much thereof as may be necessary to satisfy the judgment, interest, and costs, as upon execution; and if any part of the judgment, interest, and costs, remain unsatisfied, the sheriff shall forthwith proceed to levy the residue of the other property of the defendant.'
With these provisions of the code in force, the AEtna Insurance Company, brought suit against Hallock and others, to try the title to land. The defendants had possession, claiming under a judicial sale in proceedings to foreclose a mortgage. It was admitted that the plaintiffs below had the legal title to the land in controversy, unless it had been divested by those proceedings.
On the trial the defendant having introduced a transcript of the record of the proceedings under which they claimed title from the Court of Common Pleas of Vanderburgh County, Judgment having been given accordingly, the question now before this court was the correctness of the decision so made.
Mr. R. M. Corwine, for the plaintiff in error:
Did the omission to use the seal of the court make the order void, or was it avoidable merely? The general rule in judicial sales is, that the purchaser is not bound to look beyond the 'judgment, levy, and sale.' All other steps (such as the issuing of an execution after a year and a day without a revivor) are merely directory to the officer.3 As between the parties to the process, or their privies, the return is usually conclusive, and not liable to be collaterally impeached. In Sowle v. Champion, in the Supreme Court of Indiana,4 it was held that an order of sale, issued on a decree of foreclosure, which did not set out a copy of the decree, was informal, under the statute, but was not void, and if not set aside on the defendants' motion, that all acts done under it were valid. Yet the direction of the code, 'that a copy of the order of sale and judgment shall be issued,' is as stringent and mandatory as that other direction, that it 'shall be issued and certified by the clerk under the seal of the court,' &c. If the one is merely directory, the other is so also.
Messrs. Hughes, Denvers, and Peck, contra.
If the paper here called an order of sale is to be treated as a writ of execution or fieri facias issued to the sheriff, or as a process of any kind issued from the court, which the law required to be issued under the seal of the court, there can be no question that it was void, and conferred no authority upon the officer to sell the land.
The authorities are uniform that all process issuing from a court, which by law authenticates such process with its seal, is void if issued without a seal. Counsel for plaintiffs in error have not cited a single case to the contrary, nor have our own researches discovered one.
We have decided in this court that a writ of error is void for want of a seal, though the clerk had returned the transoript in obedience to the writ.5
We have held that a bill of exceptions must be under the seal of the judge.6
It is true that the paper now under consideration is not an ordinary fieri facias, nor is it any other...
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Southwestern Settlement & Development Co. v. Randolph
...States, in 1868, the same year that the attempted sale herein was made, rendered its decision in the case of Ætna Insurance Co. v. Hallock, 6 Wall. (73 U. S.) 556, 18 L. Ed. 948. That was a case of trespass to try title, and the only question decided was that an execution sale was void for ......
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Houston Oil Co. v. Randolph
...executions. The following extract is taken from the case referred to: "Undoubtedly, at common law, an unsealed writ was void. Insurance Co. v. Hallock, 6 Wall. 556. The rule grew out of the conditions of society and the necessities of the state. An original writ issued out of chancery, and ......
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White v. Taylor
...such requirement in the statute is mandatory, and that an order of sale not authenticated by the seal is void. Ætna Ins. Co. v. Hallock, 6 Wall. (U. S.) 556, 18 L. Ed. 948; Weaver v. Peasley, 163 Ill. 251, 45 N. E. 119, 54 Am. St. Rep. 469; Capps v. Leachman, 90 Tex. 499, 39 S. W. 917, 59 A......