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Tracy and Converse, for plaintiff.
J. S. Marcy, for defendant.
The opinion of the court was delivered by

REDFIELD, J. The only question reserved in this case is, whether a title to personal property, acquired by purchase at sheriff's sale, is absolute and indefeasible against all the world, or whether such sale only conveys the title of the debtor.

There has long been an opinion, very general, I think, in this state, not only among the profession, but the people, that a purchaser at sheriff's sale acquires a good title, without reference to that of the debtor, that such a sale, like one in market overt in England, conveys an absolute title. But, upon examination, I am satisfied that this opinion acts upon no good basis.

So far as can now be ascertained, this opinion, in this state, rests mainly upon a dictum in the case of Heacock v. Walker, 1 Tyl. 338. There are many reasons, why this dictum should not be regarded, if the matter were strictly res integra. It was a declaration of the chief justice in charging the jury. Cases were then tried by the jury at the bar of this court, as matter of right, and in course, and before the law of the case had been discussed and settled by the court. In all these · respects these trials differed essentially from jury trials at the bar of the higher courts in Westminster Hall. Such trials, there, being only matter of favor, granted in the most important cases, and after the law of the cases has been fully discussed, and settled by the court.

The law given to the jury, in the two cases, will of course partake something of the character of the respective form and deliberation of the trials. Under our former practice, law laid down in the course of a jury trial, unless when questions were reserved and farther discussed upon motions for new trials, was not much esteemed, even when it was upon the very point in dispute. But especially, the dicta of the judge, who tried the case, and who must, of necessity', somewhat amplify the bare text of the law, in order to show the jury the reason upon which it was based, could not be esteemed, as any thing more than the hastily formed opinion of the judge -- mére argument, to satisfy some possible, or apprehended, doubt of the jury in regard to the soundness of the main proposition laid down. Such was the dictum referred to. That, which was said of Chief Justice Tilghman, of Pennsylvania, is undoubtedly good praise, when said of any judge; -“He made no dicta, and he regarded none." There are sufficient reasons, why the dictum should not be regarded, if the thing were new. And we do not esteem the long standing of the dictum of any importance, unless it can be shown, that it has thus grown into a generally received and established law, or usage; which, we think, is not the case in regard to this. For this court has, within the last ten years, repeatedly held, that a sheriff's sale was of no validity to pass any but the title of the debtor, when no actual delivery of the thing sold was made by the sheriff, at the time of sale. Austin v. Tilden et al., 14 Vt. 325; Boynton v. Kelsey, Caledonia County, 1836; S. P. Lamoille County, 1841. Since the first of these cases was decided, the main question, involved in this case, has been considered doubtful in this state, and we now feel at liberty to decide it, as ve think the law should be, that is, as it is settled at common law.

But the idea, that some analogy existed between a sheriff's sale and a sale in market overt is certainly not peculiar to the late Chief Justice Tyler. This opinion seems at one time to have prevailed in Westminster Hall, to some extent, at least ; for in the case of Farrant v. Thompson, 5 B. & A. 826, which was decided in the King's Bench in 1822, nearly twenty years later than that of Heacock v. Walker, one of the points raised in the trial of the case before Chief Justice Abbott was, that the title of the purchaser, being acquired at sheriff's sale, was good against all the world, the same as that of a purchaser in market overt. This point was overruled, and a verdict passed for the plaintiff, but with leave to move to set it aside, and to enter a nonsuit, upon this same ground, with one other. This point was expressly argued by Sir James Scarlett, — who was certainly one of the most eminent counsel, and one of the most discriminating men of modern times, in the King's Bench, and was decided by the court not to be well taken. Since that time I do not find, that the question has been raised there.

It seems to be considered in Massachusetts, and in New York, and in many of the other states, that nothing analogous to markets overt in England, exists in this country. Dame v. Baldwin, 8 Mass. 518; Wheelwright v. De Peyster, 1 Johns. 480; 2 Kent, 324, and cases there cited. Nothing of that kind, surely, exists in this state, unless it be a sheriff's sale. And if the practice of holding sales in market overt conclusive upon the title existed in any of the states, it would be readily known. I conclude, therefore, that Chancellor Kent is well founded in his opinion, when he affirms, that the law of markets overt does not exist in this country. Ib.

It seems probable to me, that the idea of the conclusiveness of a sheriff's sale upon the title is derived from the effect of sales under condemnations in the exchequer, for violations of the excise or revenue laws, and sales in prize cases, in the Admiralty courts, either provisionally, or after condemnation. But these cases bear but a slight analogy to sheriff's sales in this country, or in England. Those sales are strictly judicial, and are merely carrying into specific execution a decree of the court in rem, which, by universal consent, binds the whole world.

Something very similar to this exists, in practice, in those countries, which are governed by the civil law; which is the fact in one of the American states, and in the provinces of Canada, and in most, if not all, the continental states of Europe. The property, or what is claimed to be the property, of the debtor is seized and libelled for sale, and a general monitor served, notifying all having adversary claims to interpose them before the court, by a certain day limited. In this respect the proceedings are similar to proceedings in prize courts, and in all other courts proceeding in rem. If no claim is interposed, the property is condemned, by default, and sold ; if such claims are made they are contested, and settled by the judgment of the court, and the rights of property in the thing are thus conclusively settled before the sale.

But with us nothing of this character exists in regard to sheriff's sales. Even the right to summon a jury to inquire into conflicting claims de bene esse, as it is called in England, and in the American states, where it exists, has never been resorted to in this state. And in England, where such a proceeding is common, — Impey, 153; Dalton, 146; Farr et al. v. Newman et al., 4 T. R. 621, – it does not avail the sheriff, even, except to excuse him from exemplary damages. Latkov v. Eamer, 2 H. Bl. 437; Glassop v. Poole, 3 M. & S. 175. It is plain, then, that a sheriff's sale is not a judicial sale. If it were, no action could be brought against the sheriff, for selling upon execution property not belonging to the debtor.

With us an execution is defined to be the putting one in possession of that, which he has already acquired by judgment of law. Co. Lit. 154 a. (Thomas' Ed. 405.) But the judgment is of a sum in gross “ to be levied of the goods and chattels of the debtor,” which the sheriff is to find at his peril. The sale upon the execution is only a transfer, by operation of law, of what the debtor might himself transfer. It is a principle of the law of property, as old as the Institutes of Justinian, Ut nemo plus juris in alium transferre potest, quam ipse habet.

The comparison of sheriff's sales to the sale of goods lost, or estrays, in pursuance of statutory provisions, which exist in many of the states, does not, in my opinion, at all hold good. Those sales undoubtedly transfer the title to the thing, as against all claims of antecedent property in any one, if the statutory provisions are strictly complied with ; but that is in the nature of a forfeiture, and is strictly a proceeding in rem, wherein the finder of the lost goods is constituted the tribunal of condemnation.

There being, then, no ground, upon which we think we shall be justified in giving to a sheriff's sale the effect to convey to the purchaser any greater title, than that of the debtor, the judgment of the court below is affirmed.





[Reported 5 Co. 83 6.] At the sessions of Newgate now last past, it was resolved by Popham, Chief Justice of England, Anderson, Chief Justice of the Common Pleas, Sir Thomas Egerton, Master of the Rolls, the Attorney-General, and the court, that if plate be stolen and sold openly in a scrivener's shop on the market-day (as every day is a market-day in London except Sunday) that this sale should not change the prop.. erty, but the party should have restitution ; for a scrivener's shop is not a market-overt for plate ; for none would search there for such a thing; & sic de similibus, &c. But if the sale had been openly in a goldsmith's shop in London, so that any one who stood or passed by the shop might see it, there it would change the property. But if the sale be in the shop of a goldsmith, either behind a hanging, or behind a cupboard upon which his plate stands, so that one that stood or passed by the shop could not see it, it would not change the property: so if the sale be not in the shop, but in the warehouse, or other place of the house, it would not change the property, for that is not in market-overt, and none would search there for his goods. So every shop in London is a market-overt for such things only which, by the trade of the owner, are put there to sale ; and when I was Recorder of London, I certified the custom of London accordingly. Note, reader, the reason of this case extends to all markets-overt in England. 1





(Reported 5 Cr. 358.] ERROR to the circuit court for the District of Columbia, sitting at Alexandria, in an action of trespass brought by Chapman against

1 In the United States there are no markets-overt, Dame v. Baldwin, 8 Mass. 518, 521 ; Griffith v. Fowler, 18 Vt. 390.

Brent, marshal of the District of Columbia, for taking in execution, on a fi. fa. against the estate of Robert Alexander, deceased, a slave named Ben, who was claimed by Chapman as his property.

The jury found a verdict for the plaintiff, subject to the opinion of the court upon a statement of facts agreed by the parties, which was in substance as follows:

The slave was the property, and in possession of the late Robert Alexander the elder, at the time of his death. His sons, Robert Alexander, and Walter S. Alexander, were named executors of his will, but never qualified as such. On the 17th of December, 1803, Walter S. Alexander took out letters of administration with the will annexed. No division was ever made, by the order of any court, of the personal estate of the deceased among his representatives; but previous to August, 1800, a parol division of the slaves was made between Robert Alexander the younger, and his brother, Walter S. Alexander, the latter being then under the age of twenty-one years. Robert Alexander the younger being possessed of the slave, and being taken upon an execution for a debt or debts due from himself in his individual character, in August, 1800, took the oath of insolvency under the laws of Virginia, and delivered up to the sheriff of Fairfax county in that state, the slave as a part of his property in. cluded in his schedule. The sheriff sold him at public sale, and the plaintiff, knowing the slave to belong to the estate of the deceased Robert Alexander as aforesaid, became the purchaser for a valuable consideration, and took possession of the slave, and continued possessed of him under the sale and purchase until July, 1806. The plaintiff in the winter usually resided in Maryland, and in the summer in Virginia on his farm where he kept the slave, and has never resided in the District of Columbia.

Dunlop & Co. obtained judgment against Robert Alexander the younger, as executor of his father, Robert Alexander, and upon a fieri facias issued upon that judgment, the marshal seized and took the slave as part of the estate of the testator, Robert Alexander, there being no other property belonging to his estate in the county which could have been levied except what Robert Alexander the younger had sold and disposed of for the purpose of paying his own debts. The agent of the creditors, Dunlop & Co., as well as the marshal, had notice, prior to the sale, that the plaintiff claimed the slave.

Upon this state of the case the court below rendered judgment for the plaintiff according to the verdict. And the defendant brought his writ of error.

C. Lee, for the plaintiff in error, contended that, under the circumstances of this case, five years' possession did not give a good title to Chapman. The possession was not adverse, for there was no administration upon the estate of Robert Alexander, senior, consequently no person legally competent to claim the possession. Besides, Chapman knew that the slave belonged to the estate of the testator.

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