A sale of land by a marshal on a
venditioni exponas,
after he is removed from office and a new marshal appointed and
qualified, is not void.
Such sale being returned to the court and confirmed by it on
motion, and a deed ordered to be made to the purchaser at the sale
by the new marshal, such sale being made, is valid.
The following was the entire record in the case:
"THE UNITED STATES OF AMERICA,"
"
District of Ohio, ss."
"At a circuit court of the United States for the District of
Ohio begun and held at the City of Columbus in said district on the
third Tuesday in the month of October in the year of our Lord one
thousand eight hundred and fifty-one and of the independence of the
United States of America the 76th, before the Honorable John McLean
and the Honorable Humphrey H. Leavitt, judges of said court, among
other proceedings had, were the following, to-wit: "
"The lessee of IRWIN B. DOOLITTLE
et al."
"v. In ejectment"
"LEVI BRYAN
et al."
"In this case, the lessors of the plaintiff, being citizens of
Illinois, brought their action of ejectment to recover possession
of one thousand acres of land in the State of Ohio, the declaration
being duly served on the tenants in possession, they appeared and
entered into the consent rule, and filed the general issue. On the
trial, two points arose, on which the opinions of the judges were
opposed, to-wit: "
Page 55 U. S. 564
"1. Whether a sale of land by a marshal, on a
venditioni
exponas, after he is removed from office, and a new marshal
appointed and qualified, is void"
"2. Whether such sale, being returned to the court, and
confirmed by it on motion, and a deed ordered to be made to the
purchaser, at the sale, by the new marshal, such sale being made,
is valid."
"And the counsel for the lessors of the plaintiff moved the
court to certify the above points for decision to the Supreme Court
under the statute."
"The practice to confirm the marshal's sale is under the
fifteenth section of the state statute 'regulating judgments and
executions,' and is as follows: "
" That if the court to which any writ of execution shall be
returned by the officer for the satisfaction of which any lands or
tenements may have been sold, shall after having carefully examined
the proceedings of such officer, be satisfied that the sale has in
all respects been made in conformity to the provisions of this act,
they shall direct their clerk to make an entry thereof on the
journal, that the court are satisfied with the legality of such
sale, and an order that the said officer make to the purchaser a
deed for such lands and tenements."
"October 27, 1851."
From the arguments of counsel, the following appeared to be the
dates of the several transactions.
On 19 February, 1829, a
venditioni exponas came to the
hands of William Dougherty, then the Marshal of Ohio. The writ was
returnable to the July term, 1829.
On 20 April, 1829, Dougherty was removed from office.
On 11 May, 1829, John Patterson was qualified as marshal.
On 10 July, 1829, Dougherty sold the land in question.
At the July term, 1829, the writ of
venditioni exponas
was returned, by which it appeared that the land was sold to Levi
Bryan, one of the defendants. The sale was confirmed by the court,
and Patterson, the then marshal, ordered to convey the land to
Bryan, the purchaser.
The counsel upon both sides agreed that the plaintiffs in
ejectment could not recover unless this was a void sale.
Page 55 U. S. 565
MR. JUSTICE GRIER delivered the opinion of the Court.
On the trial of this case in the circuit court, two points arose
in which the judges were divided in opinion, and which have been
accordingly certified to this Court.
1. Whether a sale of land by a marshal on a
venditioni
exponas after he is removed from office and a new marshal is
appointed is void.
2. Whether such sale, being returned to the court and confirmed
by it on motion, and a deed ordered to be made to the purchaser at
the sale by the new marshal, such sale being made, is valid.
If the first of these questions be answered in the negative, the
second will be answered affirmatively, as an undisputed
consequence.
Whether a sale made by a marshal after he is removed from office
on a writ of
venditioni exponas is void will depend on the
construction of the third section of the Act of May 7, 1800, ch.
45, and whether it is a repeal of the provisions on this subject,
contained in the twenty-eighth section of the Judiciary Act of
1789, chap. 20.
So much of the latter act as is material to our inquiry is as
follows:
"Every marshal or his deputy, when removed from office or when
the term for which the marshal is appointed shall expire, shall
have power notwithstanding to execute all such precepts as may be
in their hands respectively at the time of such removal or
expiration of office,"
&c.
The third section of the act of 1800 enacts:
"That whenever a marshal shall sell any lands, tenements, or
hereditaments, by virtue of process from a court of the United
States, and shall die or be removed from office or the term of his
commission expire before a deed shall be executed for the same by
him to the purchaser, in every such case the purchaser or plaintiff
at whose suit the sale was made may apply to the court from which
the process issued and set forth the case, assigning the reason why
the title was not perfected by the marshal who sold the same, and
thereupon the court may order the marshal, for the time being, to
perfect the title and execute a deed to the purchaser, he paying
the purchase money and costs remaining unpaid. And where a marshal
shall take in execution any lands &c., and shall die or be
removed from office, or the term of his commission expire before a
sale or other final disposition made of the same, in every case the
like process shall issue to the succeeding marshal, and the same
proceedings shall be had, as if such former marshal had not died or
been removed, or the term of his commission had not expired. And
the provisions in this section contained shall be and they are
hereby extended
Page 55 U. S. 566
to all the cases respectively which may have happened before the
passing of this act."
There is no express repeal of the act of 1789 to be found in
this act of 1800. Nor does it contain any negative terms which are
necessarily contrary to the previous affirmative act. A latter act
is never construed to repeal a prior act unless there be a
contrariety or repugnancy in them or at least some notice taken of
the former act so as to indicate an intention to repeal it. The law
does not favor a repeal by implication unless the repugnance be
quite plain; hence it has been decided that although two acts of
Parliament be seemingly repugnant, yet if there be no clause of
non obstante in the latter, they shall, if possible, have
such construction that the latter may not be a repeal of the former
by implication; Dwarris on Stat. 674, and cases cited.
The purview of the clause of the act of 1789 now in question is
to define the powers of a marshal having process in his hands at
the time he is removed or his office expires; it authorizes him to
execute process previously directed to him. The act of 1800 is
evidently intended to confer rights on the parties to have the same
acts performed by the new marshal. It gives cumulative rights and
powers for the benefit of suitors.
That such is its purview and policy is evident from its language
-- "the purchaser or the plaintiff," it is said, "may apply, and
the court may order the new marshal for the time being," and
although "may" is changed into "shall" in the latter clause of the
section, it is not necessarily inconsistent with nor repugnant to
the power conferred on the marshal to execute precepts in his hands
by the act of 1787. The latter act does not set aside or make void
process or precepts in the hands of the outgoing marshal, or
require him to hand them over to the new officer. It authorizes
"like process" to issue to him, and the word "shall" is used
because it is the most proper in conferring a power on the officer,
and is not incompatible with the choice given to the plaintiff in
the first clause of the section. The laws of the several states
affecting liens on land, and the process by which they may be sold
for the satisfaction of judgments, differ very widely. In some, by
attachment a lien is created at the institution of the suit. In
others, the judgment becomes a lien at the time of its rendition;
while in others, the execution and levy first give a lien. In some,
lands are sold on a
fi. fa., while in others it can be
sold only on a
venditioni exponas. Under the act of 1789,
a doubt might have been entertained whether land attached should be
sold by the officer who had originally attached it, and whether, if
process issued to a new officer, it might not be a relinquishment
of the lien of the original
Page 55 U. S. 567
attachment, as by fiction of law the land, like personal
property attached, might be considered in the custody of the
officer who attached it. Again, an officer, going out of office,
may have an execution in his hands which has created a lien; if the
act were construed so as imperatively to require a new or "like
process" to issue to the new officer, the lien, and with it the
debt, might be lost. In other cases, on the contrary, a marshal may
be and often is removed from office because money which once gets
into his hands cannot be got out again, and a plaintiff may much
prefer to relinquish his execution and take a new one. Doubts also
may have arisen whether a
venditioni exponas could legally
issue to the new marshal where the former one had levied on the
land and had it condemned. All these difficulties are obviated by
the act of 1800 not by repealing the general powers given by the
act of 1789, but by conferring certain powers on the new officer
where it is found expedient or necessary that he should exercise
them.
It is an argument entitled to great weight in the construction
of these statutes that different constructions have been given them
in different states and the practice under them has been more or
less conformed to the state practice without, perhaps, a proper
regard to these acts. In some, the act of 1800 has been overlooked
altogether. A sharp or stringent construction which should now
declare the latter to be a repeal of the powers conferred by the
former might have the effect of unsettling titles to land to an
extent the court may not be able to anticipate. In the present
case, it is said, the land was sold in 1829. The purchaser paid his
money and obtained his deed upon the faith of a judgment of the
court that the sale was regular, and has held the land under this
title ever since. Hundreds of similar cases may probably be found
where the same objections to the sale exist. Under such
circumstances, a court should be even astute in avoiding a
construction which may be productive of much litigation and
insecurity of titles.
We therefore answer the first question proposed in the negative,
which involves as a necessary consequence an affirmative answer to
the second, so far as it affects the case before us. But we do not
mean to say that the confirmation of a void sale by the court would
make it valid.
Order
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 on the points or questions on which the judges of the said
circuit court were opposed in opinion and
Page 55 U. S. 568
which were certified to this Court for its opinion agreeably to
the act of Congress in such case made and provided, and was argued
by counsel. On consideration whereof, it is the opinion of this
Court --
1. "That a sale of land by a marshal, on a
venditioni
exponas, after he is removed from office and a new marshal
appointed and qualified" is not void.
2. That
"such sale being returned to the court, and confirmed by it on
motion, and a deed ordered to be made to the purchaser at the sale
by the new marshal, such sale being made, is valid."
Whereupon it is now here ordered and adjudged by this Court that
it be so certified to the said circuit court.
