LESSEE OF BISBEE . HALL.

Where an injunction is allowed to stay execution levied on chattels, the sheriff is bound to restore the chattels to the owner.

Where a bidder at sheriff's sale refuses to pay the money, the sheriff is not bound to return "money made," and prosecute the purchaser.

Before the act of 1824, the assignment of a lease, tested by one witness, was good.

Where a party puts a witness upon his voir dire, as to his interest, he cannot afterwards except to him, on the ground of interest.

It seems that leases for ninety-nine years may be sold on execution as chattels.

This cause was adjourned from Hamilton county, and came before the Court upon a motion for a new trial, made by the defendant.

On the trial, the plaintiff, to deduce title to himself from Adam Moore, made when both parties claimed, gave in evidence a lease from A. Moore to Joseph B. Robinson, for ninety-nine years, reserving a yearly rent, with clauses of reentry for non-payment of the rent: with an assignment, endorsed on the back, from Robinson to T. Levinsworth, attested by one witness only. A judgment in favor of Ethan Stone, for the use of the bank of Cincinnati, against H. Flint, David Thatcher, Seth M. Levinsworth, and James H. Looker, for two thousand one hundred and thirty-five dollars and forty-three cents, rendered at the May term, 1816, and connected with this a fi. fa. et lev. fa. execution to November term, 1816, directed to Hosbrook, then sheriff, but he having gone out of office, the writ came into the hands of the coroner, who makes the following return: "I have levied on a farm as the property of Hezekiah Flint, lying near Mill creek, and about two miles from its mouth, containing eighty acres, or thereabouts, binding on the north by Thomas Graham, on the east by land owned by David E. Wade and the heirs of William Betts, on the south by the land owned by the heirs of Israel Ludlow, and on the west by Jacob Burnet and Coleman; it being the whole of said farm, claimed and owned by said Flint. November 22nd, 1816. Wm. Butler, coroner."

A venditioni exponas to March term, 1817, which is returned by the coroner, endorsed "March 29, 1817: The within described farm was bid off to Robert Boal, as agent for John H. Piatt, and the articles of sale not being complied with, the property remains on hand for want of buyers."

At the return term of the last writ, an entry was made on the minutes of the Common Pleas (and was in evidence) in the following words: "Ethan Stone for the use, &c. . Hezekiah Flint, and others. On motion, by W. Corry and I. G. Burnet, to set aside execution; motion granted, and execution set aside in this cause, 27th March, 1817."

▲ f. fa, et lev. fa. to July term, 1817, which was returned by the sheriff endorsed in the following words: "Stayed by a writ of injunction after a levy had been made on personal property, to wit, a small stock of merchandise, the right to which was claimed by Samuel P. Anthony, which was tried by a jury of five freeholders, (naming them,) who adjudged the right of said property to be in David Thatcher, the said property was advertised for sale, and before sale re-delivered to the within named D. Thatcher."

An alias f. fa. et lev. fa. to September term, 1819, returned endorsed as

follows: "August 4th, 1819, levied on part of lot, no. 167, at the corner of Walnut and Fifth streets, being fifty feet in front on Walnut street, and one hundred feet deep on Fifth street, with the improvements thereon. The right and title of Seth M. Levinsworth is intended to be taken, which is a lease for ninety-nine years, subject to a ground rent of one hundred and fifty dollars per annum.-Not sold for want of bidders."

A venditioni exponas to December term, 1819, returned endorsed as follows: "November 3rd, 1819. I have this day offered the within property for sale, at outery, or auction, and sold it to Samuel R. Allen for the sum of one thousand and fifty dollars, which money has not been received, the said refusing to comply with the terms of sale."

An alias venditioni exponas to April term, 1820, returned endorsed as follows: April 4th, 1820. I have this day sold the within described property, at public auction, to Ira White, for the sum of one hundred and seventy dollars, no person bidding more."

The plaintiff then gave in evidence a deed from Richard Ayres, sheriff, to Ira White, dated the 16th day of May, 1820, for the property in question. Also, a deed from White to Bisbee, the lessor of the plaintiff, dated 25th December, 1824, containing a covenant to warrant and defend the premises against all persons claiming under him.

The plaintiff having closed his testimony, the defendant moved the Court to overrule it, as insufficient to show title in his lessor. This motion the Court refused to sustain.-The defendant then gave in evidence a lease from Adam Moore, for the same premises, for ninety-nine years, dated January, 1825; to. gether with proof that Adam Moore had duly entered for the non-payment of rent, and enforced the forfeiture. To rebut which proof, the plaintiff offered in evidence, Ira White, the grantor to their lessor. The defendant objected, but the Court overruled the objection.-The defendant then caused Ira White to be sworn on his voir doir, and objected to his competence, and the motion was again overruled, and White examined. The jury found a verdict for the plaintiff, and the defendant moved for a new trial, on the grounds that the Court erred: 1st, In not overruling the evidence offered by the plaintiff. 2nd, That the Court erred in admitting Isaac White as a witness. 3rd, That the verdict was against evidence.

Fox, in support of the motion. Storr, contra.

By the COURT.

The first ground assigned for a new trial rests upon exceptions to the title of the plaintiff's lessor. And the first objection is, that the execution issued to November term, 1816, was levied upon lands of one of the defendants, and until that levy is disposed of no second fi. fa. could issue. The plaintiff's answer to this is, that in March, 1817, this execution and levy were set aside. And upon an examination of the order of court relied upon, we are satisfied that such was That objection, therefore, is not supported by the facts in the cause. A second objection is, that on the execution to the July term, 1817, there is a return of a levy upon personal goods of one of the defendants. But it is a

part of that return, that the sale was stayed by an injunction, and the goods redelivered to the owner.

This we deem a sufficient answer to the objection. It was lawful for the sheriff, upon the service of the injunction, to re-deliver the goods to the owner. The injunction bond was substituted for the plaintiff's security. For the sheriff to retain the goods might enforce a great loss upon him, or upon the defendant, by the natural decay of the goods, by their accidental loss, or by the charge of keeping them, as in the case of live stock. The case is very different from that of a levy on land, which is not perishable, and where the debtor's posses. sion is not divested by the levy.

The sale to Allen, on the execution to November term, 1819, it is maintained, was a disposition of this property, so that a second sale could not be made. The return shows that Allen refused to complete the contract, by paying the money. We incline to the opinion, that, if the purchaser refused to complete the contract, by paying the money, the sheriff was not bound to make himself liable, by returning an actual sale, and trusting to a recovery against a purchas

er.

But, without deciding this point, we do not hesitate to say, that if the parties to the execution took no exception, at the time, and a new vendi issued without objection, the writ was not void, and third persons cannot now so treat it.

The assignment of the lease from Robertson to Leavenworth was valid though tested by one witness. The law of 1805, respecting conveyances, did not extend to leases for terms of years. Two witnesses, therefore, were not required. The law of 1824 is more comprehensive, in its terms, and requires leases to be attested as other conveyances of real estate.

The defendants having put White upon his voir dire, cannot afterwards object to him on the ground of interest. Besides, the judges who presided at the trial think well of his testimony. The same judges also report that, upon the question of fact submitted to the jury, the question was fairly before them, upon such grounds as do not admit of the interference of the court to grant a new trial, as in case of a verdict against evidence. Motion overruled and judgment for plaintiff.

NOTE--The foregoing opinion is drawn from notes furnished by Judge Pease. Nothing is said, in them, upon the point, whether a lease for ninety-nine years of real estate, could be sold as a chat tels on execution. But as the validity of such sale was indispensable to sustain the plaintiff's title the legitimate inference seems to be, that the court considered leases liable to be seized in execution, and sold as chattels. Otherwise a new trial would have been granted.

REPORTER.

LESSEE OF GRAY บ. ASKEW.

The execution law of Feb. 1805, did not authorize a sale of decedents lands on a judgment against executors or administrators and there is no course of practice or current of decisions warrant ing such sales.

The Governor and Judges of the Territory in adopting the laws of other states did not necessarily adopt the practice of the courts of those states, under such laws.

This cause was adjourned here for decision, from the Supreme Court of Hamilton county. It was an ejectment, and came before the Court upon a case agreed.

The lessor of the plaintiff claimed under the devisees of Luther Kitchell, deceased, who died in Hamilton county, in the year 1805, having made a last will, and appointed W. Brown and P. Kitchell his executors. The will was duly proved and the executors qualified. At the time of the testator's death, he was indebted to Calvin Kitchel, who brought suit against the executors, and at August term, 1806, of the Court of Common Pleas of Hamilton county, recov ered judgment. Execution issued to December term, upon which the sheriff endorsed "nulla bona," and made a levy, and in December, 1806, sold the lands in question. The defendant claimed under the purchaser from the sheriff, and was in possession of the land.

Garrard, for the plaintiff. Wade, contra.

By the COURT.

The sale of the decedent's real estate, in this case, must be sustained, if at all sustainable, upon one of two grounds. It must be shown that the statute law of the state authorized it, by a fair construction of its terms, or that a course of judicial decision, has so sanctioned the mode of proceeding as to give it the authority of law. If either of these two grounds can be satisfactorily established the sale is valid; if neither are tenable it is inoperative.

1

The judgment was rendered in August 1806, the sale took place in December of the same year. The act of February, 1805, "defining the duties of administrators on wills and intestates' estates, and providing for the appointment of guardians," was the only statute then in force, defining the powers, duties, and liabilities of executors and administrators. It gave no power or control to either, over the lands of a deceased person. But, in all its provisions, limited their functions to the control of their personal estate. The defendant's counsel does not look to the law, regulating the duties of executors and administrators, for authority to effect the sale. He attempts to deduce it from the general law, "regulating judgments and executions," which was then in force, passed February 16, 1805. We will examine the provisions of this law, and endeavor to ascertain whether they contain any thing to warrant the sale of a dece. dent's lands, upon a judgment against his personal representative.

The first section provides, "that all lands, tenements, and real estate, shall be liable to be levied upon and sold by execution, to be issued on judgments,

which may hereafter be recovered in any Court of record within this state for the debt, damages, and costs due and owing on such judgment."

If these terms were to be taken, in the unlimited sense of their expression, they might be interpreted to subject all lands to the payment of any judgment. The injustice, as well as the ridiculous absurdity of such an interpretation, puts it out of the question. The legislature only meant to declare, that the real estate, of a debtor, should be liable to be seized in execution for the satisfaction of his debts. In what case, and under what circumstances it should be so seized, was to be subsequently provided for by law. And in the succeeding. sections of the act, it is distinctly shown, that it is only the real estate of the defendant, in the judgment, that is made liable for its satisfaction. The second section confines the lien to "the lands, tenements, and real estate of the defendant." The third, fourth, and fifth sections settle the right of preference be tween several plaintiffs, having judgments against the same defendant. The 6th section provides, "that any execution to be levied on lands, tenements, or real estate, shall command the officer to whom it is directed, that of the goods and chattels of the party against whom it is issued, he cause to be made the moneys contained in said writ, and that for wants of goods and chattels he cause the same to be made of the lands and tenements, and real estate of the defendant." The seventh section provides, "that the sheriff shall immediately after receiv ing such writ, levy on the goods and chattels of the defendant, to satisfy the moneys contained in the writ: but if goods and chattels be not found, the sheriff shall endorse on the writ, the words nulla bona, and forthwith levy the said execution on the lands, tenements and real estate of the defendant, of which said defendant was seized, at or after the first day of the term in which said judgment was obtained."

We can conceive of no process by which, according to the established form of proceeding against executors or administrators, the lands of a decedent can be reached, in virtue of these provisions, upon an execution against either. An exposition of the forms of pleading, and of judgments against the executor or administrator, seems to place this in a clear light.

In an action against an executor, if he have funds in his hands to pay the debt, the judgment against him is, that the plaintiff recover his debt, to be levied of the goods and chattels of the deceased, in his hands to be administered. If on execution upon such a judgment nulla bona be returned, the proper step is, to proceed personally against him for a devastavit, in which case, judgment goes against the person of the executor and subjects his individual estate, and, if necessary, ultimately, that of his security. On a judgment in this form, no execution could issue, to reach the decedent's land, conformable to the provisions of the law.

Again: If the executor plead plene administravit, and the plea be found for him, the judgment is, that the plaintiff recover his debt, to be levied of the goods and chattels of the decedent, that may hereafter fall into the hands of the executor. If the plea be found against him, the judgment goes against him personally. It is beyond all doubt, that no execution could issue upon either of these judgments, by which the decedent's lands could be touched consistent with the law then in force.