Trotter v. Nelson

• Decision Date: 30 September 1851
• Parties: TROTTER et al. v. NELSON et al.
• Court: Tennessee Supreme Court

31 Tenn. 7

TROTTER et al.

v.NELSON et al.

Supreme Court of Tennessee.

September Term, 1851.

On the 18th of July, 1841, Catharine McKenzie recovered a judgment in the supreme court at Knoxville, against John Colter, for the sum of “$120 damages, assessed by the jury in the court below, with the further sum of $9.12 1-2, interest on said sum from the rendition of the judgment in the court below up to this time, also the costs of this cause in this court and in the court below.” On 2d February, 1842, an execution issued upon said judgment, by which the sheriff was commanded to collect the sum of $319.06, of which amount $190.28 1-2 were costs. This execution was levied upon the land of Colter, in the language set forth in the opinion of the court. On 23d of April the sheriff sold the land to Moses Cunningham, he being the last and highest bidder. On the 8th August, 1844, Cunningham executed the following instrument of writing.

“Mr. John Howard, Sheriff of Sevier County:

I hereby authorize you to make a deed to John R. Nelson, Wilson Duggan, and Alfred Cunningham, for the land purchased by me at a sale made by A. Lawson, Jr., sheriff of Sevier county, in the year 1842, upon a fieri facias issued from the supreme court at Knoxville, on a judgment rendered by said court in favor of Catharine McKenzie against John Colter, for the amount of $120 besides costs. Said sale was made on 23d April, 1842, at the court house in Sevierville, and at which said sale I became the purchaser for $23.50. Given under my hand and seal this 8th day of August, 1844.

MOSES his X mark CUNNINGHAM. (Seal.)”

“Test. S. R. Rogers.”

Thereupon the sheriff made a conveyance to Nelson, Duggan, and Cunningham, in which deed the foregoing instrument is recited as authority for making the conveyance to said three persons. Some time afterwards an action of ejectment was instituted by Nelson and the others, to recover the land which was in the possession of Trotter and others. At the August term, 1851, of the circuit court for Sevier county, Anderson, R. M., judge, presiding, a verdict and judgment were rendered for the plaintiffs, and the defendants appealed in error.Rodgers & Boyd, for plaintiffs in error. The execution does not conform to the judgment, in issuing for a sum different from that recovered in the judgment upon which it purports to be founded, and it is therefore void. 4 Wend. 585;3 Yerg. 460;8 Id. 85;8 Humph. 414.

The levy is void for uncertainty in its description of the land. Meigs' Dig. 518, 519.

The order from Cunningham conferred upon the sheriff no authority to make the conveyance.

Hynds and T. A. R. Nelson, for defendants in error. The execution is only voidable, and the sale under it is therefore good. Lee v. Crossna, 6 Humph. 281, 283; Stevenson v. McLean, 5 id. 332-335.

The levy is not void for vagueness and uncertainty, but is sufficiently descriptive. Swan's Lessee v. Parker & Collier, 7 Yerg. 490, 493; Parker v. Swan, 1 Hump. 80-84; Vance v. McNairy, 3 Yerg. 176-178;10 Humph. 46.

An equitable title of any kind will pass by a written assignment without witnesses.

Totten, J., delivered the opinion of the court.

The action is ejectment in the circuit court of Sevier. At the July term, 1851, the cause was tried, and the verdict and judgment were for the plaintiff for a tract containing 122 acres, part of the land in the declaration mentioned, and defendants have appealed in error to this court.

The title of the lessors of the plaintiff depends upon the validity of an execution sale under which they claim, but which is impeached and contested by defendants as being irregular and void: First, because, as it is insisted, of a material variance of the execution from the judgment; and, second, because of an insufficient levy.

The execution was issued from the supreme court at Knoxville on the 2d February, 1842, in the case of Catharine McKenzie v. John Colter, for $319.06, being, as recited, for judgment and costs; whereas the judgment in the supreme court, being for damages and costs, was for a greater sum -- that is, for $328.18 1-2, -- making a variance of $9.12 1-2.

When an imperfect execution shall be deemed and held to be irregular and void, or only erroneous and voidable, is often a question difficult to determine. If there be a want of jurisdiction in the court from which it issues, it is of course to be considered as void, however formal. And so, if the execution be so defective as not to identify the court from which it issues, or the suit in which it issues; in these and the like cases of substantive and material defects the execution will be considered as merely void. Parsons v. Loyd, 3 Wilson, 345; Maxwell v. King, 3 Yerg. 460;Jennings v. Pray, 8 Id. 87;Stevenson v. McLean, 5 Humph. 332.

The rule is that the execution shall conform to the judgment, have the proper test, and be issued within the time limited by law. But we are not to understand that every departure from the rule, however small, shall have the effect to avoid the writ, or to avoid a sale that may have been made under it.

Thus, if an execution issue after a year and a day from the rendition of the judgment, without a scire facias, it is erroneous and voidable only, and a sale made under it is not void, but valid. Woodcock v. Bennett, 1 Cow. 737;Jackson v. Robins, 16 Johns. 537;Waite v. Dolby, 8 Humph. 409. So in Lee v. Crossna, 6 Humph, 281, the judgment was against three, but the execution was issued against two only of the defendants; it was held to be only voidable, and that a sale under it vested a good title in the purchaser. So in Jackson v. Page, 4 Wend. 586, a slight variance -- that is, of 50 cents -- between the execution and the judgment was held not to affect the title of the purchaser under the execution. To the same effect are the cases of Jackson v. Pratt, 16 Johns. 386;Jackson v. Davis, 18 Id. 10;Jackson v. Streeter, 5 Cow. 529.

In Jackson v. Page the...