Remington v. Linthicum
39 U.S. 84 (1840)

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U.S. Supreme Court

Remington v. Linthicum, 39 U.S. 14 Pet. 84 84 (1840)

Remington v. Linthicum

39 U.S. (14 Pet.) 84

Syllabus

A sale of land by the sheriff under the laws of Maryland, seized under a fieri facias, transfers the legal estate to the vendee by operation of law, and does not require a sheriff's deed to give it validity. But as sheriff's sales of lands are within the statute of frauds, some memorandum in writing of the sale is required to be made. It is immaterial when the return to the execution is made, provided it is before the recovery in an ejectment for the land sold, as the sale must be proved by written evidence. The sale passes the title, and the vendee takes it from the day of the sale. The evidence may therefore be procured before or at trial.

If property is seized under a fieri facias before the return day of the writ, the marshal may proceed to sell at any time afterwards without any new process from the court; as a special return on the fieri facias is one of the necessary modes of proving the sale, the marshal must be authorized to make the endorsement after the regular return term, in cases where the sale was made afterwards.

The return to a fieri facias, if written on the writ, should be so full as to contain the name of the purchaser and the price paid for the property or it would not be a sufficient memorandum of the sale within the statute of frauds; nor can an imperfect return of a sale be made complete by a reference to the private memorandum book kept by the marshal of his sales, as it was not a sufficient memorandum of a sale, within the statute.

When the deeds of the defendant in the ejectment have been referred to by the plaintiff for the sole purpose of showing that both parties claim under the same person; this does not prevent the plaintiff impeaching the deeds afterwards for fraud.

The defendant in error, Otho M. Linthicum, instituted an action of ejectment in the Circuit Court of the County of Washington, for the recovery of certain real estate situated in the County of Washington, which had been purchased by him at a marshal's sale, sold under three writs of fieri facias, against Z. M. Offutt, and which the defendant in the ejectment claimed to hold under a deed of conveyance made by Z. M. Offutt, after the judgments on which the property was sold.

On the trial of the cause, on the fourth Monday in March, 1839, the counsel for the defendant, in the circuit court, took three bills of exceptions to the decisions of the court, upon points submitted to them, and a verdict and judgment having been rendered for the plaintiff in the ejectment, the defendant prosecuted this writ of error.

Page 39 U. S. 90

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