Ejectment for a tract of land commenced in 1831 which had been
sold under the foreign attachment laws of Ohio, the defendants in
the ejectment being in possession under the defendant in the
attachment. The judgment in the Common Pleas of Hamilton County,
Ohio, in the attachment suit was entered in 1808. The writ of
attachment was returnable to April, 1807, and it recited that it
had been sufficiently testified to the court that the defendant,
not residing in the state, was indebted to the plaintiff. The tract
of land was attached and returned with an inventory and
appraisement. The defendant having made default, auditors were
appointed, and at December term they made a report finding due to
the plaintiff $267. The court ordered the property to be sold by
the auditors. At April term, 1808, they reported they had sold the
premises for $170. The court, on inspection, confirmed the sale.
The auditors afterwards conveyed by deed to Samuel Foster and
William Woodward, who on the same day, 25 May, 1808, conveyed the
premises to William Stanley with covenant of seizin, power to sell
and general warranty, under whom the plaintiffs in the ejectment
derived title. The proceedings in the attachment were in conformity
with the Ohio attachment laws in all particulars except
1. No affidavit, as required by the statute, was found filed
with the clerk, and the law provides that, if this is not done, the
writ shall be quashed on motion.
2. Three months' notice of the attachment is to be given in a
newspaper, and fifteen days' notice is to be given by the auditors,
which did not appear to have been done.
3. The defendant is to be called three times preceding judgment,
and the defaults recorded. No record appeared to have been
made.
4. Auditors are not to sell until twelve months, and it did not
appear when the sale was made.
5. The return of the sale shows a sale to Foster and Woodward,
and a deed was made to Stanley, and no connection between them was
shown in the record.
By the court.
"The several courts of common pleas of Ohio, at the time of
these proceedings were courts of general civil jurisdiction, to
which was added by the act of 1805 power to issue writs of
attachment and order a sale of the property attached on certain
conditions; no objection therefore can be made to their
jurisdiction over the case, the cause of action, or the property
attached. The process which they adopted was the same as prescribed
by the law; they ordered a sale, which was executed; and on the
return thereof gave it their confirmation. This was the judgment of
a court of competent jurisdiction on all the acts preceding the
sale, affirming their validity in the same manner as their judgment
had affirmed the existence of a debt. There is no principle of law
better settled than that every act of a court of competent
jurisdiction shall be presumed to have been rightly done till the
contrary appears. This rule applies as well to every judgment or
decree rendered in the various stages of their proceedings from the
initiation to their completion, as to their adjudication that the
plaintiff has a right of action.
Page 35 U. S. 450
Every matter adjudicated becomes a part of their record, which
thenceforth proves itself without referring to the evidence on
which it has been adjudged."
That some sanctity should be given to judicial proceedings, some
time limited beyond which they should not be questioned, some
protection afforded to those who purchase at sales by judicial
process, and some definite rules established by which property thus
acquired may become transmissible with security to the possessors
cannot be denied. In this country particularly, where property
which within a few years was but of little value in a wilderness is
now the site of large and flourishing cities, its enjoyment should
be at least as secure as in that country where its value is less
progressive.
It is among the elementary principles of the common law that
whoever would complain of the proceedings of a court must do it in
such time as not to injure his adversary by unnecessary delay in
the assertion of his right. If he objects to the mode in which he
is brought into court, he must do it before he submits to the
process adopted. If the proceedings against him are not conducted
according to the rules of law and the court, he must move to set
them aside for irregularity, or, if there is any defect in the form
or manner in which he is sued, he may assign those defects
specially, and the court will not hold him answerable till such
defects are remedied. But if he pleads to the action generally, all
irregularity is waived, and the court can decide only on the rights
of the parties to the subject matter of controversy; its judgment
is conclusive unless it appears on the record that the plaintiff
has no title to the thing demanded or that in rendering judgment it
has erred in law. All defects in setting out a title or in the
evidence to prove it are cured, as well as all irregularities which
may have preceded the judgment.
So long as this judgment remains in force, it is in itself
evidence of the right of the plaintiff to the thing adjudged, and
gives him a right to process to execute the judgment; the errors of
the court, however apparent, can be examined only by an appellate
power, and by the laws of every country, a time is fixed for such
examination, whether in rendering judgment, issuing execution, or
enforcing it by process of sale or imprisonment. No rule can be
more reasonable than that the person who complains of an injury
done him should avail himself of his legal rights in a reasonable
time or that that time should be limited by law.
The line which separates error in judgment from the usurpation
of power is very definite, and is precisely that which denotes the
cases where a judgment or decree is reversible only by an appellate
court or may be declared a nullity collaterally when it is offered
in evidence in an action concerning the matter adjudicated or
purporting to have been so. In the one case it is a record
importing absolute verity; in the other, mere waste paper; there
can be no middle character assigned to judicial proceedings, which
are irreversible for error. Such is their effect between the
parties to the suit, and such are the immunities which the law
affords to a plaintiff who has obtained an erroneous judgment or
execution.
The cases of
Blaine v. The Charles
Carter, 4 Cranch 328, 2 Cond. 127;
Wheaton v.
Sexton, 4 Wheat. 506, 5 Cond. 119;
Tolmie v.
Thompson, 2 Pet. 157;
Elliott v.
Piersol, 1 Pet. 340;
Wright
v. Lessee of Hollingsworth, 1 Pet. 169;
Taylor v.
Thompson, 5 Pet. 370;
United
States v. Arredondo, 6 Pet. 729 cited.
The President and Directors of the Bank of the United States
instituted
Page 35 U. S. 451
an action of ejectment in 1831, for the recovery of a tract of
land in the County of Hamilton in the State of Ohio. On the trial
of the case, in order to establish their title, they gave in
evidence to the jury the proceedings in an attachment against Seth
Cutter in the County Court of Hamilton County commenced in 1807,
under which the tract of land in the ejectment was sold in 1808 and
the sale returned by the auditors appointed by the court to make
the same on 16f April, 1808. The sale was confirmed by the court at
August term, 1808, and, according to the provisions of the
attachment law of the State of Ohio, the auditors had previously
made a deed to William Woodward and William Foster the purchasers
of the property sold.
This deed was executed on 28 May, 1828, to Woodward &
Foster, who on the same day conveyed the same to William
Stanley.
The defendants in the ejectment claimed title to the premises,
which were in their possession, under Seth Cutter. They insisted
that the proceedings in attachment did not divest Seth Cutter of
his title to the land, but the court instructed the jury otherwise.
The jury gave a verdict in favor of the plaintiffs. To the judgment
of the circuit court on the verdict the defendants below prosecuted
this writ of error.
The record of the County Court of Hamilton County in the
attachment against Seth Cutter, and the opinion of the circuit
court upon the title derived under it by the plaintiffs below, were
brought up by a bill of exceptions. The whole proceedings in the
attachment are stated fully in the opinion of the Court.
Page 35 U. S. 469
MR. JUSTICE BALDWIN delivered the opinion of the Court.
This case comes up by a writ of error from the Circuit Court for
the District of Ohio to reverse a judgment in an action of
ejectment obtained by the defendants against the plaintiffs in
error. The sole question in the court below was the validity of a
sale of the premises in controversy under a judgment of the Court
of Common Pleas of Hamilton County, Ohio, in a case of foreign
attachment rendered against Seth Cutter in 1808 at the suit of
Samuel Foster. By the record in that case it appears that the writ
was returnable to April term, 1807. It recited that the plaintiff
had sufficiently testified to the judges, that the defendant, who
is not residing in the state, is indebted to the plaintiff, &c.
The sheriff returned the writ with an inventory of the property
attached by him in which was included the property in question,
with an appraisement thereof. At the April term, the defendant was
three times called and made default, whereupon the court appointed
auditors to report at August term following; the order was then
continued till December term, when the auditors made a report
finding a debt of $267 due the plaintiff. The court then rendered
judgment on the report and ordered the property attached to be sold
agreeably to law. An order of
Page 35 U. S. 470
sale was accordingly issued to the auditors, who at the April
term, 1808, to-wit on 16 April, reported that they had sold the
premises to William Stanley for $170, on an inspection of which the
court granted judgment of confirmation thereof. On 28 May, 1808,
the auditors made a deed to Samuel Foster and William Woodward, who
on the same day conveyed the same to William Stanley, under whom
the lessors of the plaintiff claimed by sundry mesne
conveyances.
The consideration of the deed from the auditors to Foster and
Woodward was $170, the same as from them to Stanley, but they gave
in their deed a covenant of seizin, of power to sell, and general
warranty. The defendants were in possession, claiming title under
Seth Cutter, the defendant in the attachment, as whose property the
land was sold. The case has been submitted on printed arguments
which present a full and able view and discussion of the points
arising in the cause.
On comparing the record of the proceedings on the attachment
with the provisions of the act of 1805, Chase's Ohio Laws, 462
&c., the acts of the court in all the course of the cause
appear to be in conformity therewith except in the following
particulars, on which the objections to the validity of the sale
are founded:
1. By the first section, it provides that an affidavit shall be
made and filed with the clerk before the writ issues, and if this
is not done, the writ shall be quashed on motion; no such affidavit
is found in the record.
2. The fifteenth section directs three months' notice to be
given by publication in a newspaper of the issuing of the
attachment before judgment shall be entered; the eleventh section
also prescribes that fifteen days' notice of sale shall be given by
the auditors, neither of which appears by the record to have been
done.
3. By the proviso to the eighth section, the defendant must be
three times called at each of the three terms preceding judgment
and make default, which defaults shall be recorded by the clerk; no
entry is made of such default at the December term, 1807.
4. By the eleventh section, the auditors are prohibited from
selling till the expiration of twelve months from the return of the
writ, whereas the order issued before, and it does not appear when
the sale was made.
5. The return of the sale by the auditors shows a sale to
one
Page 35 U. S. 471
person and a deed to others not in any mode connected with the
record.
There is no provision in the law that if the several acts
therein directed to be done are omitted, the sale or any other
proceedings under the attachment shall be deemed void, but by the
thirteenth section it is declared that every sale and conveyance
made by the said auditors or any two of them by virtue of the
authority herein granted shall be as binding and effectual as if
the same had been made by the said defendant prior to the service
of the said attachment.
It is contended by the counsel for the plaintiffs in error that
all the requisitions of the law are conditions precedent which must
not only be performed before the power of the court to order a sale
or the auditors to execute it can arise, but that such performance
must appear on the record.
The first part of this proposition is the true meaning of the
law of Ohio: the various acts required to be done previous to a
sale are prescribed by a proviso, which in deeds and laws is a
limitation or exception to a grant made or authority conferred, the
effect of which is to declare that the one shall not operate or the
other be exercised unless in the case provided.
By the eleventh section, the auditors are directed, by virtue of
an order of the court, to sell and convey the lands attached,
provided they give notice; notice, then, is the condition on the
performance of which their duty and power depend, and the act must
be done to make the execution of the power consistent with the
law.
But the provisions of the law do not prescribe what shall be
deemed evidence that such acts have been done, or direct that their
performance shall appear on the record. The thirteenth section,
which gives to the conveyance of the auditors the same effect as a
deed from the defendant in the attachment, contains no other
limitation than that it shall be "in virtue of the authority herein
granted."
This leaves the question open to the application of those
general principles of law by which the validity of sales made under
judicial process must be tested, in the ascertainment of which we
do not think it necessary to examine the record in the attachment
for evidence that the acts alleged to have been omitted appear
therein to have been done. Assuming the contrary to be the case,
the merits of the present controversy are narrowed to the single
question whether this omission invalidates the sale. The several
courts of
Page 35 U. S. 472
common pleas of Ohio, at the time of these proceedings, were
courts of general civil jurisdiction, to which was added by the act
of 1805 power to issue writs of attachments and order a sale of the
property attached on certain conditions; no objection, therefore,
can be made to their jurisdiction over the case, the cause of
action, or the property attached. The process which they adopted
was the same as prescribed by the law; they ordered a sale which
was executed, and on the return thereof gave it their confirmation.
This was the judgment of a court of competent jurisdiction on all
the acts preceding the sale, affirming their validity in the same
manner as their judgment had affirmed the existence of a debt.
There is no principle of law better settled than that every act of
a court of competent jurisdiction shall be presumed to have been
rightly done till the contrary appears. This rule applies as well
to every judgment or decree, rendered in the various stages of
their proceedings from the initiation to their completion, as to
their adjudication that the plaintiff has a right of action. Every
matter adjudicated becomes a part of their record, which
thenceforth proves itself without referring to the evidence on
which it has been adjudged.
In this case, the court issued an order of sale agreeably to
law, which having been returned by the auditors and "being
inspected, the court grants judgment of confirmation thereon." It
is therefore a direct adjudication that the order of sale was
executed according to law. They had undoubted authority to render
such a judgment, and there is nothing on the record to show that it
was not rightfully exercised. If the defendants' objections can be
sustained, it will be on the ground that this judgment is false and
that the order of sale was not executed according to law, because
the evidence of its execution is not of record. The same reason
would equally apply to the nonresidence of the defendant within the
state, the existence of a debt due the plaintiff or any other
creditor which is the basis on which the whole proceedings rest.
The auditors are equally silent on the evidence, upon which they
reported that debts were due by the defendant, as on the evidence
of notice and due publication, but no one could pretend that the
judgment that the debts reported were due shall be presumed to be
false. Though the able and ingenious argument of the defendants has
not been directed at this part of the judgment of the court of
common pleas, the grounds of objection are broad enough to embrace
it, for in resting their case on the only position which the record
leaves them, they necessarily affirm the
Page 35 U. S. 473
general proposition that a sale by order of a court of competent
jurisdiction may be declared a nullity in a collateral action if
their record does not show affirmatively the evidence of a
compliance with the terms prescribed by law in making such sale. We
cannot hesitate in giving a distinct and unqualified negative to
this proposition, both on principle and authority too well and long
settled to be questioned.
That some sanctity should be given to judicial proceedings, some
time limited beyond which they should not be questioned, some
protection afforded to those who purchase at sales by judicial
process, and some definite rules be established by which property
thus acquired may become transmissible with security to the
possessors cannot be denied. In this country particularly, where
property which within a few years was but of little value in a
wilderness is now the site of large and flourishing cities, its
enjoyment should be at least as secure as in that country where its
value is less progressive.
It is among the elementary principles of the common law that
whoever would complain of the proceedings of a court must do it in
such time as not to injure his adversary by unnecessary delay in
the assertion of his right. If he objects to the mode in which he
is brought into court, he must do it before he submits to the
process adopted. If the proceedings against him are not conducted
according to the rules of law and the court, he must move to set
them aside for irregularity; or if there is any defect in the form
or manner in which he is sued, he may assign those defects
specially, and the court will not hold him answerable till such
defects are remedied. But if he pleads to the action generally, all
irregularity is waived and the court can decide only on the rights
of the parties to the subject matter of controversy. Their judgment
is conclusive unless it appears on the record that the plaintiff
has no title to the thing demanded or that in rendering judgment
they have erred in law; all defects in setting out a title or in
the evidence to prove it are cured, as well as all irregularities
which may have preceded the judgment.
So long as this judgment remains in force, it is in itself
evidence of the right of the plaintiff to the thing adjudged, and
gives him a right to process to execute the judgment; the errors of
the court, however apparent, can be examined only by an appellate
power, and by the laws of every country a time is fixed for such
examination, whether in rendering judgment, issuing execution, or
enforcing it
Page 35 U. S. 474
by process of sale or imprisonment. No rule can be more
reasonable than that the person who complains of an injury done him
should avail himself of his legal rights in a reasonable time, or
that that time should be limited by law.
This has wisely been done by acts of limitation on writs of
error and appeals. If that time elapses, common justice requires
that what a defendant cannot do directly in the mode pointed out by
law he shall not be permitted to do collaterally by evasion.
A judgment or execution irreversible by a superior court cannot
be declared a nullity by any authority of law if it has been
rendered by a court of competent jurisdiction of the parties the
subject matter, with authority to use the process it has issued; it
must remain the only test of the respective rights of the parties
to it. If the validity of a sale under its process can be
questioned for any irregularity preceding the judgment, the court
which assumes such power places itself in the position of that
which rendered it and deprives it of all power of regulating its
own practice or modes of proceeding in the progress of a cause to
judgment. If after its rendition it is declared void for any matter
which can be assigned for error only on a writ of error or appeal,
then such court not only usurps the jurisdiction of an appellate
court, but collaterally nullifies what such court is prohibited by
express statute law from even reversing.
If the principle once prevails that any proceeding of a court of
competent jurisdiction can be declared to be a nullity by any court
after a writ of error or appeal is barred by limitation, every
county court or justice of the peace in the union may exercise the
same right, from which our own judgments or process would not be
exempted. The only difference in this respect between this and any
other court is that no court can revise our proceedings; but that
difference disappears after the time prescribed for a writ of error
or appeal to revise those of an inferior court of the United States
or of any state; they stand on the same footing in law. The errors
of the court do not impair their validity; binding till reversed,
any objection to their full effect must go to the authority under
which they have been conducted. If not warranted by the
Constitution or law of the land, our most solemn proceedings can
confer no right which is denied to any judicial act under color of
law, which can properly be deemed to have been done
coram non
judice -- that is, by persons assuming the judicial function
in the given case without lawful authority.
The line which separates error in judgment from the
usurpation
Page 35 U. S. 475
of power is very definite, and is precisely that which denotes
the cases where a judgment or decree is reversible only by an
appellate court, or may be declared a nullity collaterally when it
is offered in evidence in an action concerning the matter
adjudicated or purporting to have been so. In the one case, it is a
record importing absolute verity; in the other, mere waste paper;
there can be no middle character assigned to judicial proceedings,
which are irreversible for error. Such is their effect between the
parties to the suit, and such are the immunities which the law
affords to a plaintiff who has obtained an erroneous judgment or
execution. It would be a well merited reproach to our jurisprudence
if an innocent purchaser, no party to the suit, who had paid his
money on the faith of an order of a court, should not have the same
protection under an erroneous proceeding as the party who derived
the benefit accruing from it. A purchaser under judicial process
pays the plaintiff his demand on the property sold; to the extent
of the purchase money, he discharges the defendant from his
adjudged obligation. Time has given an inviolable sanctity to every
act of the court preceding the sale which precludes the defendant
from controverting the absolute right of the plaintiff to the full
benefit of his judgment, and it shall not be permitted that the
purchaser shall be answerable for defects in the record from the
consequence of which the plaintiff is absolved. Such flagrant
injustice is imputable neither to the common or statute law of the
land. If a judgment is reversed for error, it is a settled
principle of the common law coeval with its existence that the
defendant shall have restitution only of the money; the purchaser
shall hold the property sold; and there are few, if any states in
the union who have not consecrated this principle by statute.
This great rule, established for the protection of purchasers on
the faith of judicial process, will be utterly prostrated,
encouragement will be given to defendants in judgments, their heirs
and privies, to take advantage of the security into which honest
purchasers have been lulled, if any judicial proceeding which could
stand the test of a writ or error or appeal, if taken in time, or
had become irreversible directly could be avoided collaterally.
Acts of limitation become useless if a defendant is allowed to
evade them by avoiding judgments or executions on the suggestion of
defects or omissions in the record which can be reviewed only by an
appellate court; a direct premium is held out for delaying the
resort to the mode pointed out by law for correcting the errors of
judicial
Page 35 U. S. 476
proceedings. His debt is paid by the purchaser; the property
purchased is restored to the defendant without any obligation to
refund, and that which was, when sold, of little value, and bought
at its full price paid to the defendant's use, becomes his rightful
estate when the remote outlot has become a mart for commerce and
covered with valuable improvements. Had he brought his writ of
error in time and reversed the judgment or execution on which it
was sold, justice would have been done him by a restitution of the
purchase money, and to the purchaser by leaving him in the quiet
enjoyment of the property purchased. Such are the consequences of
the doctrines contended for by the defendants' counsel in their
objections to the proceedings on the attachment; none of them
affect the jurisdiction of the court or its authority to order or
confirm the sale; the acts omitted to be noticed on the record are
not judicial, but ministerial, to be performed by the clerk or
auditors. It was a good ground for a motion to quash or suspend the
proceedings for irregularity if they had not been done in fact, and
as the judgment was by default, perhaps the omission to state them
on the record may have been good cause for reversal on a writ of
error. But on an inspection of these proceedings collaterally, we
can judicially see only what the court has done, not whether they
have proceeded
inverso ordine, erroneously, according to
the proof before them, or what they have omitted, or ought to have
done. They have adjudged that the order of sale was executed
agreeably to law; nothing appears on the record to impugn their
judgment; it must therefore be taken to be true in fact and valid
in law. Their order of sale was a lawful authority to the auditors
to sell; it was a full justification to them in obeying it; it was
executed in virtue of the authority granted by the law to the
court, which has not exceeded its jurisdiction, and the deed of the
auditors passed the title to the premises in controversy to the
purchaser.
It has not been thought necessary to review the various cases
cited in the argument. The principles which must govern this and
all other sales by judicial process are general ones adopted for
the security of titles, the repose of possession, and the enjoyment
of property by innocent purchasers, who are the favorites of the
law in every court and by every code. Nor shall we refer to the
decisions of state courts or the adjudged cases in the books of the
common law. Our own repeated and uniform decisions cover the whole
case in its most expanded view, and the highest considerations call
upon us so to
Page 35 U. S. 477
reaffirm them, that all questions such as have arisen in this
cause may be put at rest in this and the circuit courts. In
Blaine v. Charles Carter, a ship had been sold under
executions issued within ten days after judgment, contrary to the
express prohibition of the twenty-third section of the Judiciary
Act; but no writ of error was taken out. The court declared that if
the executions were irregular,
"the court from which they issued ought to have been moved to
set them aside. They were not void, because the marshal could have
justified under them, and if voidable, the proper means of
destroying their efficacy had not been pursued."
The decree of the circuit court was affirmed and the money
ordered to be paid over to the execution creditor.
8
U. S. 4 Cranch 328,
8
U. S. 333.
In
Wheaton v. Sexton, the case turned on the validity
of the sale of real estate by the marshal of this district by
virtue of an execution, in which the language of this Court is:
"The purchaser depends on the judgment, the levy and the deed.
All other questions are between the parties to the judgment and the
marshal. Whether the marshal sells before or after the return,
whether he makes a correct return or any return at all to the writ,
is immaterial to the purchaser, provided the writ was duly issued,
and the levy made before the return."
17 U. S. 4
Wheat. 506.
In
Tolmie v. Thompson, there had been a sale under an
order of the orphan's court of this district, which had been
confirmed by them and a deed made to the purchaser, the validity of
which was questioned on objections similar to those now under
consideration. The court said
"Those proceedings were brought before the court collaterally,
and are by no means subject to all the exceptions which might be
taken on a direct appeal. They may well be considered judicial
proceedings; they were commenced in a court of justice, carried on
under the supervising power of the court, and to receive its final
ratification. The general and well settled rule of law in such
cases is that when the proceedings are collaterally drawn in
question and it appears on the face of them that the subject matter
was within the jurisdiction of the court, they are voidable only.
The errors and irregularities, if any exist, are to be corrected by
some direct proceeding, either before the same court to set them
aside or in an appellate court. If there is a total want of
jurisdiction, the proceedings are void and a mere nullity, and
confer no right, and afford no justification, and may be rejected
when collaterally drawn in question."
The purchaser is not bound to look beyond the decree when
Page 35 U. S. 478
executed by a conveyance if the facts necessary to give
jurisdiction appear on the face of the proceedings, nor to look
further back than the order of the court.
"If the jurisdiction was improvidently exercised or in a manner
not warranted by the evidence before it, it is not to be corrected
at the expense of the purchaser, who had a right to rely upon the
order of the court as an authority emanating from a competent
jurisdiction."
27 U. S. 2 Pet.
163,
27 U. S.
168.
"When a court has jurisdiction, it has a right to decide every
question that arises in the cause, and whether the decision be
correct or not, its judgment until reversed is regarded as binding
in every other court."
Elliott v.
Piersol, 1 Pet. 340;
27 U. S. 2 Pet.
169.
In
Taylor v. Thompson, this Court affirmed a principle
of the common law that the sale of a term of years under a
fieri facias, issued after and while the defendant was in
execution under a
ca. sa. on the same judgment was good
when made to a stranger to the execution.
30 U. S. 5 Pet.
370.
In the
United States v. Arredondo, it was laid down as
an universal principle that when power or jurisdiction is delegated
to any public officer or tribunal over a subject matter, and its
exercise is confided to his or their discretion, the acts so done
are valid and binding as to the subject matter, and individual
rights will not be disturbed collaterally for anything done in the
exercise of that discretion within the authority and power
conferred. The only questions which can arise between an individual
claiming a right under the acts done and the public or any person
denying their validity are power in the officer and fraud in the
party. All other questions are settled by the decision made or the
act done by the tribunal or officer unless an appeal or other
revision of their proceedings is prescribed by law.
31 U. S. 6 Pet.
729-730.
These are rules of property which have been established so far
as the authority of this Court can do it. They apply to and must
govern this case on the broad principles laid down, and none of
them come into collision with any construction given to the laws of
Ohio, prescribing the mode of transferring real estate by judicial
process. On the broadest ground, therefore, which has been taken in
any of the specified objections to the proceedings of the court of
common pleas in the attachment suit; we are most clearly of opinion
that none of them can be sustained without the violation of
principles which ought to remain inviolable.
The remaining objection is that the auditors did not make
their
Page 35 U. S. 479
deed to the person who purchased at the sale under the order of
the court. This is a matter entirely between such person and those
to whom the deed was made. To Cutter it is immaterial to whom the
conveyance was made; his right was extinguished by the sale and
confirmation. It is equally immaterial to those who claim under
Cutter who received the deed -- Stanley, the purchaser, or Foster
the plaintiff. Lt was a matter between themselves which can have no
effect on the validity of the sale, were it unexplained. But
connecting the record with the deeds, their inspection removes the
objection for the reasons stated in the argument of counsel. Samuel
Foster was the principal creditor and plaintiff in the suit;
Stanley purchased, but took his deed from Foster and Woodward with
their covenants of seizin, warranty, and title. Had he taken a deed
directly from the auditors, it must have been without any
covenants. The object was evidently to have an assurance of the
title, for both deeds were executed and acknowledged on the same
day, and the consideration of both was the same.
The judgment of the circuit court is
Affirmed.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Ohio and was argued by counsel, on consideration whereof it is
ordered and adjudged by this Court that the judgment of the said
circuit court in this cause be and the same is hereby affirmed with
costs.