Willhite knew the standing of his title the money due on the land to gov. ernment, and his ability and arrangements to complete the payment. He does not pretend that he disclosed these facts to Hunter, nor is there any evidence to shew, that Hunter had reason to suspect that the purchase money had not been paid to government, or that Willhite's title was not complete.

If this contract had been made in good faith, both parties being ignorant of the value, the case would have presented itself to my mind, in a different aspect, but it appears to me, that on the part of Willhite, the contract was made, mala fide, and that the depreciation of value has arisen from the want of title, not disclosed, but since discovered, and from the conduct of Willhite himself, subse. quent to the contract, of which Hunter could have no knowledge. Equity does not usually require any thing to be done pro forma, when the doing of it would be vain, and useless. The complainant had discovered that Willhite had no title, and that he could not execute a deed. It was altogether uncertain whether he would ever acquire a title. It was therefore natural for Hunter to draw the conclusion, that in the estimation of both parties, the contract was at an end. Under such circumstances, to require a formal tender of the purchase money, or a demand of a deed, to put the vendor in the wrong, seems to be, to say the least of it, herens in cortice.

It is true, that the complainant has not expressly proved a negative, as to his want of knowledge of the state of the title, but he has solemnly averred it under oath in his bill, and the defendants have not attempted to deny it in their answers, or to disprove it by testimony. I cannot therefore concur in the opinion expressed by the court.

ARNOLD v. FULLER'S HEIRS.

A writ of error and supersedeas does not vacate a levy upon real estate.

A levy on real estate is not affected by quashing the vendi, and setting aside the valuation. Where a fi. fa. is returned levied upon real estate, another fi. fa. issued before the first levy is disposed of, is void.

A sci. fa. is a proper remedy to vacate a satisfaction improperly entered up.

This was a scire facias, brought before the Supreme Court in Gallia county, at May term, 1824, by appeal from the common pleas. The facts of the case were these. At the August term, 1813, Samuel Green Arnold, obtained judgment against Sylvester Fuller, for $468,95 damages, and cost of suit. On the 8th July, 1814, an execution issued to David Ridgeway, sheriff of Gallia, which was returned no goods. On the 28th October, 1814, an alias, fi. fa. et, lev. fa. issued to the same sheriff, who returned that he had levied on one hundred acres of land, being lot, number 730, of town one, range fifteen, Ohio company's purchase: and that further proceedings were stayed by writ of error, afterwards abated by the death of Fuller; the sheriff, Ridgeway, went out of office, and in February, 1818, a vendi-expo. issued to his successor, which was returned, property not sold for want of bidders. On motion of the defendant's counsel, this writ was quashed and the appraisement of the property set aside by the On the 28th Nov. 1818, a new execution issued to J. Holcomb, then sheriff of Gallia county, on which he returned that he had levied on a hundred acre lot of land, number, 730, town 1, range 15, Ohio company's purchase,

court.

The

and had sold the same to David Putnam, plaintiff's attorney, for $920. receipt of the said Putnam was also returned in the following words, $628, April 13, 1819; Received of Samuel R. Holcomb, by land bid off on this execu. tion, six hundred and twenty-eight dollars, for debt and interest on this execu tion."

The defendant, Fuller, died intestate, having previously conveyed the land to his son, one of the present defendants. The plaintiff avers in his scire facias, that by reason of the premises, the sale was inoperative and void, and that his judgment still remains unsatisfied. The defendants are called upon to shew cause, why the proceedings, since the death of the defendant, Sylyester Fuller, should not be set aside, and the judgment satisfied of the lands and real estate of the said Fuller deceased, and particularly of the said let, number 730. The defendants demurred, and the plaintiff joined in demurrer.

KING, in support of the demurrer. GRAINGER, Contra.

Opinion of the Court by Judge BURNET.

Several questions are presented in this case. 1. Did the writ of error and su persedeas avoid and vacate the execution and levy, so as to render it a nullity, or did it merely stay the proceedings of the sheriff. 2. If the latter, did the order of the court, quashing the vend. expo. and setting aside the appraisement, affect the lev. fa. and the levy made thereon. 3. If the supersedeas merely stay. ed the proceedings, was the execution of Nov. 28, 181, and the sale made there. on, merely irregular, or altogether void, so as to entitle the plaintiff to the relief prayed for. 4. Can a scire facias be sustained in a case like the present.

As to the first point, no authority has been cited to show the effect of a supersedeas on an execution levied on real estate. It is said in the books, that the ob. ject of a supersedeas is to stay proceedings till the errors are disposed of. In the Bishop of Ossory's case, (Cro. Jas. 534.) it was resolved by all the court, that the writ of error was a supersedeas till the error was examined, affirmed, or reversed. In Badger v. Lloyd, (3 Salk. 145.) it was said by Holt, Chief Justice, that although a writ of error forecloses the court, and ties up their hands, yet it doth not alter the right of the parties.

If a writ of error be allowed on the return day of a ca. sa. the sheriff may, notwithstanding, return the writ non est; the plaintiff shall have the benefit of the return, and may afterwards proceed against the bail. Parkins v. Wilson, (2 L. Ray. 1256.) This could not be the case if the allowance rendered the execution anullity. The same inference may be drawn from the reason given for quashing the writ in the case of Smith v. Nicholson, (2d Stra. 1186.) A ca. sa. had been taken out on the 3d of December, for the purpose of proceeding against bail. On the next day a writ of error was allowed, after which the ca. sa. was return. ed non est inventus. After the writ of error was at an end, the plaintiff proceeded by scire facias against the bail. On motion the whole proceedings were set aside, because the return of non est inventus was obtained after notice of the writ of error, which, in its nature, stops all proceedings. The sheriff could not so much as look after the defendant, in order to ground such a return thereon. The reason is apparent; as the rule required the ca. sa. to remain four days in the sheriff's office before he was authorized to return a non est inventus, for the

purpose of fixing the bail, and as the writ of error was allowed the next day af ter the ca. sa. issued, the operation of the ca. sa. was suspended before it was ripe for the return, and while something remained to be done, which the allow. ance prohibited; but in the preceeding case, the four days having elapsed before the allowance, the return was held to be good, and the bail were fixed. This could not have been the case if the writ of error had affected the ca. sa, so as to render void that which had been done before the allowance. In the one case,

the execution being ripe for a return, before the supersedeas, the return was sustained, though made after the supersedeas. In the other case, the execution having been superseded before it was ripe for a return, was considered a nullity. The principle on which these cases were decided being applied to the case in hand, must lead to this conclusion: that as the lev. fa. had been levied, and was ready to be returned before the writ of error, the return was well made, and af. ter the writ of error was at an end, the plaintiff was entitled to the benefit of it; but if the writ of error had been allowed after the execution had issued, but before the levy, the proceedings would have been void. We find many cases in which executions have been set aside for having issued after the allowance of writs of error; but where the allowance has been after the issuing of the execu tion, the operation has been to stay further proceedings, leaving the matter in statu quo. The general rule seems to be, that the writ of error operates as a supersedeas from the time of the allowance, and will therefore avoid an after execution, or levy; but on the principle here contended for, it will have a retrospec tive effect, by operating on a writ and levy anterior to the allowance. It would seem as reasonable that it should overreach an execution on which a part of the money had been levied and paid over before the allowance, as that it should render void a levy made before the allowance. Neither the necessity of the case, nor the object of the writ, requires such an effect. It does not follow from the allowance that the judgment will be reversed; when, therefore, a levy is made on land, which neither changes the possession, nor restricts the occupant in the use of it, his purpose is gained by a stay of proceedings till the judgment be reversed or affirmed. It is decided in Withers v. Henley, (Cro. Jas. 379.) cited by defendant, that a supersedeas is as good a cause to discharge a prisoner taken on a ca. sa. as the first process was to arrest him. This, however, is from the necessity of the case, for on no other principle can the party have the benefit of his writ of error. While that is pending the plaintiff ought not to hold a satisfaction of his judgment by detaining the defendant in custody. But the case of Sare v. Shelton, (2 Roll. Ab. 491.) where it was holden, that if before sale of goods seized under a fi. fa. the defendant deliver a writ of supersedeas, he shall have the goods again, because the property is not altered by the seizure, has been declared not to be law. (4 Bac. title supersedeas pl. 6, 7. Yelv. 6.) In Charter v. Peeter, (Cro. Eliz. 597.) the defendant's goods had been taken on a fi. fa. and before sale a writ of error and supersedeas were taken. The sher. iff returned the seizure, also that the goods remained in his hands for want of bidders, and that a supersedeas was awarded. All the court held, notwithstanding the supersedeas, in regard it came not to the sheriff until he had begun to make execution, that a vend. expo. should be awarded to perfect it. In Regina v. Nash, (2 L. Ray. 990.) it was decided, that if goods are once levied, a certiorari, to re

move the conviction, will not suspend their sale. In Clerk v. Withers, (1 Salk. 323.) it was ruled, that the sheriff might proceed to sell, after the plaintiff's death, and that execution being an entire thing, connot be superseded after it is begun. But admitting the case of Sare v. Shelton to be good law, it is by no means conclusive as to this case, for when goods and chattels are taken, the defendant loses the possession, and the property may be lost or destroyed during the pendency of the writ of error; but on a lev. fu. no such privation takes place. The possession and use of the property remain with the defendant; there is, therefore, no necessity for setting aside the writ and levy.

The second question does not admit of a doubt. The motion was confined to the vend. expo. and the appraisement, and the order of the court extended no further. The levy was not comprehended in the motion, and cannot be affected by the order. It is the constant practice to set aside valuations of property, without disturbing the levy; and it never has been supposed that such an order rendered it necessary to sue out a new writ, or to obtain a new levy.

The next inquiry is, whether the lev. fa. of November 23, 1818, and the sale made thereon were merely irregular, or altogether void. In the case of Clerk v. Withers, before cited, it was resolved that the plaintiff's death did not abate the execution; that an execution is an entire thing, and cannot be super. seded after it is begun; that by the seizure the property was out of the defendant, and in abeyance, and that no further proceedings could be had against him, because the plaintiff had made his election. In Ladd v. Blunt, (4 Mass. 402.) it was decided, that after the sheriff has seized goods sufficient to satisfy the judgment, the defendant is discharged, though the sheriff may have wasted the goods, squandered the money, or has not returned the execution.

In 2 Tid. 937, it is laid down, that when the sheriff takes goods upon a fi. fa. to the amount of the sum directed to be levied, the defendant is discharged, and may plead it, &c. In 1 Sell. 571, it is said there ought not to be two executions at the same time, but if one proves ineffectual, another may be sued out. In the case before us the first execution did not prove ineffectual; a levy was made and returned, and the property had not been sold when the second execution issued. In the case of Stoyel v. Cady, (4 Day, 222.) a ca. sa. had been executed after the return day had passed.

The defendant, to procure his discharge, paid the money, and then brought an action against the sheriff and recovered a larger sum than the judgment. The plaintiff, in the original action, paid the money, and after his death, his administrators brought a scire facias, to set aside the proceedings, and obtain a new execution, on the ground, that the ca. sa. had become a perfect nullity, before it was served; that the judgment had been discharged by mistake, and that there had been no real satisfaction. The court sustained the writ, and the plaintiff had judgment. In that case the return day of the ca. sa. being past, it was dead in law before it was served, and gave no authority to the officer; there had been a lapse of time; the parties were changed, and the plaintiff must have lost his debt without the relief sought for. In the case before the court, there was a levy by Ridgeway, in the life of the defendant, not disposed of. After that levy, and the death of the defendant, a new execution issued against him, to

Holcomb, by virtue of which, there was another levy, a sale and a return of satisfaction.

3.

It is contended by the defendants, that these proceedings are not void, but only voidable. The distinction between void and voidable, is not as distinctly defined, as could be wished. It is said that those acts are void, which are contrary to law, at the very time of doing them, and no person is bound by such an act, but a thing is only voidable, which is done by a person who ought not to have done it, (5 Bac. tille void and voidable, A. pl. 1.) By this rule, all the proceedings subsequent to the death of the defendant, were not only irregular, but void. The execution directed to Holcomb was illegal at the time it was taken out. 1. Because there was a previous execution and levy, on which no sale had been made. 2. Because the defendant was dead, before it issued. Because his property, in the hands of his representatives, could not be taken, without a previous scire facias. Some of the cases cited by the defendants' counsel, to shew that these proceedings were merely voidable, are certainly strong; but the death of the defendant, and the change of the sheriff, are cir. cumstances which did not occur in either of them, and are sufficient to show, that they do not meet the case before us. Had the sale been made by the same officer who made the first levy, the second writ and levy might perhaps have been considered as mere nullities, and the sale referred to the first levy; but such was not the fact. The sale was by a person, who derived no power, or authority, from that levy, and if it be supported, it must be done on the efficacy of the last process, and the proceedings had thereon. To justify this, the first levy must be considered as disposed of, by the writ of error, and should that be admitted, the death of the defendant, having intervened, a scire facias was ne cessary, and the process should have been against the representatives, and not in the name of the deceased defendant, so that in either case, the proceedings. must be illegal.

As to the fourth point, the defendants' counsel urge several objections against proceeding by scire facias. They insist, from the definition of the writ given in 2 Saund. 70, that it is inapplicable to this case, but they seem to forget that there is here a satisfaction of record, which forms the chief difficulty of the plaintiff, and which he seeks to set aside.

The second objection, that a scire facias to revive a judgment was unknown at common law, and was given by a statute not in force in this state, as also the third objection, that no writ of scire facias can issue against the terre tenants until the heir has been summoned in, nor against the heir, till the personal representatives have been called on, are predicated on a mistaken apprehension of the object of the writ in the present case, which is to get rid of the illegal proceedings, since the death of Sylvester Fuller, so as to proceed on the levy, legal. ly made, in his life time. It is not to revive the judgment, or to lay a foundation for process against any of his representatives. If the land levied on, in the life of the defendant, be not sufficient to satisfy the judgment, the plaintiff must pur.. sue the course pointed out by the statute, before he can take out execution for the residue. The great object of this proceeding, is to avoid the entry of satis faction, on the record, and the proceedings which have led to it, for the purpose of enabling the plaintiff to pursue his remedy, by commencing at the point, where the proceedings stood, at the death of the defendant.