Lawrence v. Grambling

• Decision Date: 01 March 1880
• Docket Number: CASE No. 822.
• Citation: 13 S.C. 120
• Parties: LAWRENCE v. GRAMBLING.
• Court: South Carolina Supreme Court

13 S.C. 120

LAWRENCE

v.GRAMBLING.

CASE No. 822.

Supreme Court of South Carolina.

Mar. 1st, 1880.

1. Objections not raised at the proper time cannot be considered on appeal.

2. A purchaser at sheriff's sale is not affected by irregularities in the execution under which he purchased, especially so in an action to try the title between the purchaser and the defendant in such execution.

3. The act of 1873 (15 Stat. 495), amends not only the sections of the code therein mentioned, but also other sections containing matter necessarily inconsistent with the amendments introduced by that act.

4. Since the act of 1873, an execution may be issued without leave at any time within three years after entry of judgment, and with leave upon motion at any time while the judgment remains unsatisfied.

5. If issued without leave after three years have expired, the execution is not void, but only voidable for irregularity.

6. The want of leave to issue may be supplied by proof of consent, and such consent may be presumed from the failure of defendant to move to have the execution set aside; and a payment upon an execution irregularly issued is proof of actual assent.

7. A failure by the sheriff to levy on personalty before selling real estate, and defects in the advertisement of the land, do not affect, prejudicially, the purchaser's title.

Before ALDRICH, J., Spartanburg, March, 1879.

Action commenced February 23d, 1878, by Joseph Lawrence against Henry Grambling, for damages in trespassing upon land. By consent of parties an order was passed directing the issues to embrace the title to the premises as well as damages for the trespasses. Henry Grambling claimed title as the purchaser of the land in dispute at sheriff's sale, as the property of Lawrence. The sale was made under execution in the case of James McMakin v. Joseph Lawrence, judgment by confession in summary process, October, 1859. The petition was not signed nor sealed by the clerk, and there was no mark of entry or filing, but it was enrolled by the clerk, and the taxation of costs was approved and signed by him. The first execution upon this judgment was issued in November, 1859, a second in August, 1866, and a third in February, 1875. These two last executions were not issued under proceedings by scire facias nor by leave of the court, but were issued and endorsed as alias executions. Under the one of latest date the land was levied upon, and in August, 1867, was sold to Bobo and Cleveland, who afterwards conveyed to the defendant. It was in proof that Lawrence had personal property more than enough to pay the executions. After the sale the plaintiff here paid to the sheriff the balance claimed to be due on the McMakin judgment. The sheriff's deed described the land as three hundred acres, more or less, the same said to be lots Nos. 7 and 8 of a survey made, &c.; this description of the land by lots did not appear in the advertisement.

The defendant's counsel requested the presiding judge to charge-

1. If judgment has been entered previous to the adoption of the code of procedure and execution issued thereon within five years and returned unsatisfied, an alias or pluries execution may issue at any time without application to the court, though five years have elapsed since the issuing of the last execution.

2. If the execution was active at the time of the adoption of the code, it may be renewed at any time afterwards without application to the court.

3. If the purchase by plaintiff was under an execution which, at the time of the sale, had lost its active energy, then the plaintiff's claim must fail, even if the defendant had shown no color of title, and the plaintiff must establish a clear title in himself.

4. That the payment by the plaintiff on the execution of McMakin after the sale by the sheriff to Bobo and Cleveland, was an acknowledgment that the execution was unsatisfied and validated the sale.

All of which request to charge his Honor, the presiding judge, refused.

At the request of the plaintiff's attorneys, the presiding judge then charged the jury-

1. That the execution should have commanded a levy on personalty, and the sheriff should have levied upon such personalty before levying upon and selling real estate.

2. In order to renew the execution under which the land was sold, it was necessary to obtain the consent of Lawrence on the executions or an order of court.

3. If the jury believed that Lawrence did not give his consent, and no order of court was granted, then the sale under said execution conferred no title on Grambling.

He further charged that if the advertisement and deed do not describe the lands sold by the sheriff, they may be void for uncertainty.

To all of said charges the defendant's counsel excepted.

The jury found for plaintiff the land in dispute and $500 damages, and judgment was entered thereon, and defendant appealed.

Mr. J. B. Cleveland, for appellant.

The sheriff's deed, under which appellant holds, conveyed a good title. 9 S. C. 288;33 How. Pr. 289. The case of Pierce v. Crane, 4 How. 256, is authority sufficient upon this point. The execution was ratified as binding by the payment made on it. What is the object of a renewal by sci. fa.? It is to satisfy the court that its process is still unsatisfied. Payment is an acknowledgment. It can ratify a contract, renew a debt. Why not revive an execution? 11 S. C. 79. It was error to charge that a levy should have been made on personal property before levying upon real estate. 39 Barb. 396; 3 Wait's Act. & Def. 97; 12 Rich. 54;2 Bail. 421.

Mr. J. S. R. Thomson, contra.

The execution sale under which appellant claims was void. (1.) Because the executions were renewed without authority of law. 15 St. 499, § 15. The renewal of an execution without the sanction of a statute, is impossible. Freem. on Ex'ns, § 66, note;27 Ill. 540. Section 307 of the code is repealed by act of 1873. Sedg. on Stat. 104-106, 365; 11 Wall. 88; 33 Penna. St. 511; 15 Gray 24. (2.) Because the execution does not describe the judgment. The judgment is for $46.30, with interest from October 28th, 1859; the execution was issued for $48.81, with interest from November 1st, 1859. Freem. on Ex'ns, § 42; 1 Nev. 413;8 Ired. 221. (3.) Because the execution should have commanded a levy on personalty. Freem. on Ex'ns, § 109. (4.) Because the levy was excessive. The land was worth $2000, and there were two lots, and the debt was less than $150. Rorer on Jud. Sales, §§ 398, 402, 586; Kerr on Fr. & Mis. 188; 19 How. 303;Story's Eq., §§ 244, 246; 3 Desaus. 292. (5.) The judgment, as proved, will not support the sale of the land, being neither signed, sealed nor filed by the clerk. 2 Mill C. R. 248; 2 Bro. 186; 2 Hill 438.

The sheriff's deed is void for uncertainty, as it does not describe the land sold by the sheriff. Freem. on Ex'ns, § 330; Rorer on Jud. Sales, § 577. The payment afterwards made by Lawrence does not validate the sale. He really paid all the debt, and up to that time Bobo and Cleveland had not complied with their bid. 3 Hill 289;4 Strob. 293; 2 McC. 264; 1 Rich. Eq. 351. If any of the judge's rulings were correct, and would sustain the verdict, other erroneous rulings would be immaterial. 3 S. C. 58;5 S. C. 5;9 S. C. 457;10 S. C. 247.

The opinion of the court was delivered by

WILLARD, C. J.

This is an action of trespass, but the issues were framed by the consent of parties so as to raise the question whether the plaintiff or the defendant had title to the premises described in the complaint. The questions brought before us by the appeal depend upon the fact that the defendant claimed to have purchased the premises in question at sheriff's sale under a judgment recovered by one McMakin against the plaintiff. The regularity of the execution under which the defendant purchased is questioned. An objection was taken in argument that the judgment on which the execution was issued was not duly proved. It does not appear that any objection was made at the trial to the proof offered to establish this judgment, nor that the objection is raised in either the requests to charge or the charge as reported, and that objection cannot, for that reason, be considered on the present appeal.

The objections to the execution present, as a preliminary inquiry, the question, whether the plaintiff can dispute in this action the regularity of the execution under which the defendant purchased. It will be noticed that the plaintiff, in the presentcase, was defendant in the execution under which the land was sold, and the present defendant was not a party thereto.

It is well settled that a purchaser at a sheriff's sale under a judgment cannot be prejudiced by irregularities in the issuing of the execution under which he purchased, where such irregularities do not, in their nature, render the execution void, but merely voidable. Ingram v. Belk, 2 Strob. 207. The reason of the rule is that such irregularities may be cured by consent or acquiescence on the part of the defendant in the execution or by amendment against such defendant; and if the defendant in the execution neglects to take advantage of such irregularities in a direct proceeding, neither he nor any one claiming under or through him shall make them available against the purchaser. Williamson v. Farrow, 1 Bail. 611. The reason of this rule has the strongest application where the defendant, who has neglected to take advantage of such irregularities in a direct proceeding to set aside the execution, is in possession of the land sold, and claims to hold it against the purchaser under such execution on the ground of the existence of such irregularities. Even third parties, who have no right to a direct proceeding to set aside the execution for irregularity, cannot take advantage of such irregularities as against the purchaser under such execution, (Henry v. Ferguson, 1 Bail., 512;Jackson v. Bartlett, 8 Johns. R. 361,) much less can the defendant in the...