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




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

MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.

This was an action of ejectment brought by Linthicum against Remington, in the Circuit Court for Washington County, in the District of Columbia, to recover part of lot No. 153, in Beatty and Hawkins' addition to Georgetown.

It seems that a certain Zachariah M. Offutt, of the said county, was the owner of the property in question, and being indebted to Linthicum in three several sums of money, actions were brought by the latter upon those claims in the year 1836. Judgments were obtained in due course of law, and executions against the property of the defendant were issued upon each of them, returnable to November term, 1837, of the said court. Upon each of these writs of fieri facias the marshal seized the property which is now in question and sold it at public sale on 13 January, 1838, and at this sale Linthicum was the highest bidder, and became the purchaser.

In 1835, before the institution of any of the above-mentioned

Page 39 U. S. 91

suits, Offutt, by deed duly executed, conveyed this property to James Remington, who in the same year conveyed it in like manner to William Remington, the plaintiff in error.

Linthicum, having purchased of the marshal as before mentioned, brought an ejectment in February, 1838, against William Remington, who was the tenant in possession. The case came on for trial at March term, 1839, and the judgment of the circuit court being in favor of the plaintiff, the defendant brought the writ of error which is now before us.

Three bills of exception were taken at the trial, but the principal and most important question arises on the first. It appeared that the writs of fieri facias herein before mentioned had not been returned to the court, but had remained in the possession of the marshal and were produced by him at the trial after the jury were sworn. The plaintiff offered these writs in evidence, together with the endorsements upon them and also a schedule, in the usual form, of the property seized and a particular account of its sale as entered in a book kept by the clerk of the marshal for such purposes. It is, however, unnecessary to state the contents of those endorsements and of the said account, because the opinion of this Court does not turn upon them.

In addition to these papers, the plaintiff offered in evidence a special return of the said writs by the marshal, which return it was admitted was not written until after the jury were empanelled, and the plaintiff accompanied this offer with a prayer to the court to authorize the marshal to make such written return.

The return thus offered bears date April 19, 1839, which is the term at which the ejectment was tried in the circuit court. It states that the fieri facias was levied on this property; that it was duly advertised, and sold according to law; states the day of the sale; that Linthicum being the highest bidder, became the purchaser; states the price at which he bought; that he had paid the purchase money, and fulfilled the conditions of the sale. This return refers to the schedule of the property seized and returned with the writ, in which the lot in question is described by abuttals with sufficient precision. To the admission of all or any of this evidence the defendant objected, but the objection was overruled by the court and the evidence admitted, and this forms the first exception.

The evidence stated in this exception was offered by Linthicum in order to show a legal title in himself at the commencement of the suit, and undoubtedly such a title must be shown by the plaintiff in ejectment, and he cannot recover upon a title acquired pending the action. In deciding upon the admissibility of this evidence for the purpose for which it was offered, we must of course be governed by the laws of Maryland as far as we can gather them from the decisions of her courts, because the property in question is situated in Washington County, in this District, where the laws of Maryland, as they existed at the time jurisdiction was assumed by Congress, have been adopted.

Page 39 U. S. 92

In the case of Boring's lessee v. Lemmon, 5 Harr. & Johns. 225, the Court of Appeals of Maryland held that the sale of land by the sheriff, seized under a fieri facias, transferred the legal estate to the vendee, by operation of law, and that a deed from the sheriff was not necessary.

The authority of this case is recognized in Barney's lessee v. Patterson, 6 Harr. & Johns. 204, in which the court said "it is not the return of the officer that gives title to purchaser, but the previous sale." But they then proceed to qualify in some measure the general expressions used in Boring's Lessee v. Lemmon, and declare that sheriffs' sales of land are within the statute of frauds, and that some memorandum in writing is necessary to be made, and they recommend, for the safety of purchasers, that in addition to a deed from the officer, there should be a special return of the execution, particularly describing the premises and setting out the name of the purchaser, either of which (the deed or the special return), the court said, "though not operating to pass the title, would be safe and competent evidence of the sale."

The chief objection to the special return made by the marshal in this case is that it was not made before the suit was brought, and is not therefore admissible to show title at the commencement of the suit. This objection rests upon the hypothesis that a deed from the marshal or a special return upon the execution was necessary to perfect the title of the vendee. But the Court of Appeals of Maryland, in the two cases above referred to, have decided that neither the return nor the deed passed the title, that they were nothing more than evidence of the sale, and that it was the sale which transferred the title by operation of law. It would seem to follow from these decisions that it cannot be material at what time this evidence is obtained. He cannot recover without it, because the sale being within the statute of frauds, it must be proved by written evidence. But whenever this evidence is obtained, it proves the previous sale by the officer, and as it is the sale that passes the title, the vendee must take it from the day of the sale. The evidence may be procured, therefore, before or after suit brought, or before or after the jury is sworn in the trial of the ejectment. And the special return of the marshal in the case before us, made at the time of the trial, was admissible in evidence, for when thus made, it related back to the sale and proved the title to be good from that day. The return is also sufficiently special, and complies with the statute of frauds.

Neither is there any objection to the time at which this execution was actually returned to the court. It is true that it was made returnable, on the face of it, to November term, 1837. But if property, real or personal, is seized under a fieri facias before the return day of the writ, the marshal may proceed to sell at any time afterwards without new process from the court. And as a special return on the fieri facias is one of the modes of proving the sale and securing the title of the purchaser, the marshal must be authorized to make the endorsement, after the regular return term, in

Page 39 U. S. 93

cases when the sale was made afterwards. In this case, the executions had never been returned; they were still in the possession of the marshal, and the return at first endorsed on them was still in his power, and if he believed it not correct or not sufficiently particular, he had a right to change it. His return, when thus made, was under his oath of office, and he was equally responsible for it as if it had been made on the return day named in the writ itself. And as the executions in question had not before been returned to the court, we do not think that any leave was necessary in order to authorize the special endorsement made upon them.

We have said nothing of the short returns endorsed, in the first instance, on these executions, nor of the accounts of sales contained in the marshal's private book of accounts, because the returns, as first written, did not name the purchaser nor state the price paid for the property, and were consequently, not of themselves such written evidence as would satisfy the statute of frauds. Nor can they be made better by reference to the memorandum of the sales in the private book accounts of the marshal, which certainly was not that kind of written evidence of the contract of which Linthicum could avail himself, in order to avoid the operation of the statute of frauds. We place the decision upon the special return before mentioned.

The second exception may be disposed of in a few words. In order to supersede the necessity of tracing a title regularly from the state, the plaintiff read in evidence the deed from Offutt to James Remington and from James Remington to William Remington, hereinbefore mentioned, for the purpose of showing that the defendant in ejectment, William Remington, claimed title under the said Offutt. And then offered further to prove that the said deeds were fraudulent and void, as against him the plaintiff. This last mentioned evidence was objected to by the defendant, but admitted by the court, and we think rightly admitted. The deeds were read by the plaintiff to show that Remington claimed under Offutt, but not to show that he was a bona fide purchaser. And when he afterwards offered evidence to prove that these deeds were fraudulent, there was nothing in this offer inconsistent or incompatible with what he had before endeavored to establish by read by the plaintiff to these deeds. The third and last exception has not been much pressed here, and certainly in the manner in which the point is here stated, there is nothing for this Court to act upon. The exception states generally, that the plaintiff offered evidence tending to prove that the conveyance from Offutt to James Remington, was fraudulent as against the plaintiff, and that the defendant offered evidence tending to prove the contrary, and then moved the court to instruct the jury, that upon the evidence offered by the plaintiff, if believed by them, he was not entitled to recover, which instruction the court refused. No part of the evidence given by the plaintiff to establish the fraud, nor any given by the defendant to rebut it, is stated in the exception. It is impossible to say that

Page 39 U. S. 94

the circuit court were in error, when we have none of the facts before us upon which their opinion was given. Indeed, from the manner in which the testimony is referred to in the exception, it would seem that the question was rather one of fact than of law, and that it was therefore properly left to the jury.

An objection has also been taken to the declaration upon the ground that the property sued for is not described in it with sufficient precision. It is described as

"all that lot, piece, or parcel of land, lying, and being in Georgetown, aforesaid, being that part of lot number one hundred and fifty-three, in Beaty and Hawkins' addition to Georgetown, aforesaid, which is bounded as follows, to-wit,"

and the declaration then proceeds to set out its abuttals. Undoubtedly, it has often been decided in Maryland, that a declaration for a part of a tract of land by its name only, or for part of a lot in a town, by its number only, without setting out the lines or boundaries, is too uncertain, and that an action cannot be supported upon such a declaration. But this case does not come within these decisions, because the vague and imperfect description objected to, is immediately followed in the declaration by a particular description by lines and boundaries. It is said, however, that this description is also too vague and uncertain, and that the property is not sufficiently identified by abuttals, set out in the declaration. We think otherwise. The description of the premises appears to us to be sufficient, and we perceive no objection on that score, which ought to have prevented the plaintiff in the court below from sustaining his action.

The judgment of the circuit court is therefore affirmed.

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