1. Under the Civil Code of Indiana, the "order of sale" in
proceedings for the foreclosure of a mortgage comes within the
function and supplies the purpose of an execution. Consequently,
the code requiring executions to be sealed with the seal of the
court, such order of sale, if not so sealed, is void.
2. The sheriff could not sell without such order.
In Indiana, the distinction between proceedings in common law
and chancery is abolished, and under their code one form of action
only, the "civil action," is known. [
Footnote 1] This code provides as follows:
"Sec. 407. When a judgment requires the payment of money, or the
delivery of real or personal property, the same may be enforced by
execution."
"Sec. 409. The execution must issue in the name of the state,
and be directed to the sheriff of the county, sealed with the seal,
and attested by the clerk of the court."
The proceedings to foreclose a mortgage are the same as in other
actions, except that when there is no express agreement in the
mortgage, nor any separate instrument, for the payment of the sum
secured thereby, the remedy of the mortgagee shall be confined to
the property mortgaged, and in that case the judgment of
foreclosure shall order the mortgaged premises to be sold, or so
much thereof as will satisfy the judgment. If there is a promise in
the mortgage, or in a separate instrument, to pay the sum secured,
the court shall direct in the order of sale that any balance which
may remain unsatisfied after the sale of the mortgaged premises,
shall be levied of any other property of the mortgage debtor.
[
Footnote 2]
Page 73 U. S. 557
Section 635 is thus:
"A copy of the order of sale, and judgment, shall be issued and
certified by the clerk,
under the seal of the court, to
the sheriff, who shall thereupon proceed to sell the mortgaged
premises, or so much thereof as may be necessary to satisfy the
judgment, interest, and costs,
as upon execution; and if
any part of the judgment, interest, and costs, remain unsatisfied,
the sheriff shall forthwith proceed to levy the residue of the
other property of the defendant."
With these provisions of the code in force, the AEtna Insurance
Company, brought suit against Hallock and others, to try the title
to land. The defendants had possession, claiming under a judicial
sale in proceedings to foreclose a mortgage. It was admitted that
the plaintiffs below had the legal title to the land in
controversy, unless it had been divested by those proceedings.
On the trial the defendant having introduced a transcript of the
record of the proceedings under which they claimed title from the
Court of Common Pleas of Vanderburgh County,
"the plaintiffs then offered in evidence the original order of
sale issued to the sheriff on the decree of foreclosure, and upon
which order of sale the sheriff sold to the defendant in the case
the premises in controversy, which order of sale appeared, on
inspection thereof, not to have been issued under the seal of said
Court of Common Pleas of Vanderburgh County, and not to have had
the seal of said court impressed thereon, or in any manner annexed
thereto. . . . And the court,
because the said order of sale
was not issued under the seal of the said Court of Common Pleas of
Vanderburgh County, did find for plaintiffs, to which finding
of the court the defendants at the time excepted."
Judgment having been given accordingly, the question now before
this Court was the correctness of the decision so made.
Page 73 U. S. 558
MR. JUSTICE MILLER delivered the opinion of the Court.
If the paper here called an order of sale is to be treated as a
writ of execution or
fieri facias issued to the sheriff,
or as a process of any kind issued from the court, which the law
required to be issued under the seal of the court, there can be no
question that it was void, and conferred no authority upon the
officer to sell the land.
The authorities are uniform that all process issuing from a
court, which by law authenticates such process with its seal, is
void if issued without a seal. Counsel for plaintiffs in error have
not cited a single case to the contrary, nor have our own
researches discovered one.
We have decided in this Court that a writ of error is void for
want of a seal, though the clerk had returned the transcript in
obedience to the writ. [
Footnote
3]
Page 73 U. S. 559
We have held that a bill of exceptions must be under the seal of
the judge. [
Footnote 4]
It is true that the paper now under consideration is not an
ordinary
fieri facias, nor is it any other common law
writ. It may be well, therefore, to consider what is its relation
to the writ of
fieri facias, and especially whether it was
essential to the authority of the sheriff to make the sale. That
the ordinary writ of
fieri facias is the authority of the
sheriff to levy on property and sell it is undoubted, and needs no
reference to authorities to support it; and if the supposed writ is
void, then the levy and sale are also void, and not merely
voidable, because they are made without any authority on the part
of the officer.
The decisions cited by counsel are all cases where process was
issued irregularly, in point of time, or where the officer has not
proceeded according to some statutory requirement which was
directory to him, but did not affect his power to sell.
But if his power to sell depends upon a process, and that
process shows on its face that it is void, it can confer no
authority, and all his proceedings under it are simply void.
The question then recurs, did the authority of the sheriff to
make the sale on which plaintiffs in error rely, depend upon the
order of sale issued by the Court of Common Pleas?
In courts which pursue the chancery practice in foreclosing
mortgages, unaffected by statutory provisions, the sale is made by
a commissioner appointed by the court. This is usually one of the
standing master commissioners of the court, or, for reasons shown,
some special commissioner for that purpose. In neither case does
any process or order under seal of the court issue to the
commissioner. He may, if he thinks proper, procure a copy of the
decree and order appointing him commissioner, or if the party who
wishes
Page 73 U. S. 560
the decree executed thinks proper in this mode to demand of him
to proceed, he may furnish him such copy.
But it is believed that the decree itself is the authority on
which the commissioner acts, and if he proceeds in conformity to
the decree, the sale will be valid although no copy has been placed
in the hands of the commissioner.
In the courts of Indiana the distinction between common law and
chancery proceedings is abolished, and under their code of civil
procedure but one form of action, called a civil action, is known.
This code provides, ยง 407, that "when a judgment requires the
payment of money, or the delivery of real or personal property, the
same may be enforced by execution." Section 409 says,
"The execution must issue in the name of the state, and be
directed to the sheriff of the county, sealed with the seal, and
attested by the clerk of the court."
Section 635, which relates to the proceedings to foreclose a
mortgage, we give verbatim:
"A copy of the order of sale, and judgment, shall be issued and
certified by the clerk,
under the seal of the court, to
the sheriff, who shall thereupon proceed to sell the mortgaged
premises, or so much thereof as may be necessary to satisfy the
judgment, interest, and costs, as upon execution; and if any part
of the judgment, interest, and costs remain unsatisfied, the
sheriff shall forthwith proceed to levy the residue of the other
property of the defendant."
Though the order of sale here described may not come under the
name of any of the recognized common law writs of execution, as
capias, fieri facias, or others, yet it comes clearly
within the function and supplies the purpose of an execution --
that is, a process issuing from a court to enforce its
judgment.
The statute recognizes it such, and requires that it shall issue
under the seal of the court. The sheriff to whom it is directed is
required to proceed "as upon execution." If the debt is not
satisfied by the sale of the property specifically mentioned in the
order, it the operates as a
fieri facias, under which the
sheriff is directed to levy the residue of any
Page 73 U. S. 561
other property of the defendant. It is therefore to all intents
and purposes an execution, and the statute expressly requires that
it must issue under the seal of the court. Without the seal it is
void. We cannot distinguish it from any other writ or process in
this particular.
It is equally clear that under the Indiana statute the sheriff
could not sell without this order, certified under the seal of the
court, and placed in his hands. This is his authority, and if it is
for any reason void, his acts purporting to be done under it are
also void.
Judgment affirmed.
[
Footnote 1]
2 Gavin & Hord's Statutes of Indiana, 33.
[
Footnote 2]
Sections 632-634
[
Footnote 3]
Overton v.
Check, 22 How. 46.
[
Footnote 4]
Pomeroy's Lessee v. Bank of
Indiana, 1 Wall. 592;
and see Boal's Lessee v.
King, 6 Ohio, 11;
Bybee v. Ashby, 2 Gilman 157;
Tibbetts v. Shaw, 19 Me. 204;
Witherill v.
Randall, 30
id. 170;
State v. Curtis 1
Hayward, 471;
Hall v. Jones, 9 Pickering 446.
