GENTRY V. DEC. 1831. heir of B is not looked for until the death of A. For until that time he is not wanted to fill the freehold; altho' B had a vested interest, and he who is the heir of B at WAGSTAFF. A's death, and not he who is heir at B's death, succeeds to the estate. We had a remarkable application of this rule some years ago, in the late Supreme Court, in the case of Exum v. Davie. (1 Murph. 375.) An estate was limited to Harwood Jones for life, remainder to John Jones and his heirs. John Jones died before 1795, (when the act passed calling the females equally with the males to the inheritance,) leaving a son and a daughter. The son was then his heir, to-wit, at his death. After 1795, Harwood Jones, the tenant for life, died; at which time both the son and daughter were the heirs of John Jones ; and they both succeeded equally to the estate. It was said to be quite immaterial who were the heirs of John Jones, as to these lands, when John Jones died. For there was a freeholder in the person of the particular tenant; and the law looked for the heirs, only when they were wanted to succeed to the freehold interest, which was on the death of the tenant for life. In the case before the court, the law does not look for the children of the tenants for life, until the estate of the tenants for life determines. For they were wanted for no purpose, and as the husband had no duties to perform in regard to the lands, the law gave him no interest or estate therein. I have confined myself entirely to frechold interests. As to chattel interests in lands, as terms for years, the doctrine of feuds does not apply, as they were unknown to the feudal law. A sheriff can As to the argument, that the husband could have sold sell only such these lands by estoppel, so he might sell any other lands estates as the de- in the same way; but the sheriff can only sell what the fendant in the defendant himself can sell, where his conveyance ope execution can convey by deed rates by way of passing or transferring an estate; not passing an estate. Where the where it operates by way of estoppel. If it included sales deed of the de- operating by the latter mode, the sheriff might sell any operate only by tract of land, or all the lands in his county. fendant would way of estoppel, a sheriff's deed I have entered more at large into this case, from what conveys nothing fell from me, when it was opened. The authorities cited SEAWELL V. BANK OF CAPE FEAR. and relied on by the defendant prove that there must be Dre. 1831. a present interest and a seisin of corporeal hereditaments. (Taylor v. Hoode, 1 Bur. 107. Tho. Co. 672, 582. 2 Bl. Com. 127. 2 Buc. Ab. Curtesy, C. 2, 3. Preston on Estates, 215.) It may therefore be said as universally true, that by the marriage the husband acquires no interest in the corporeal real estates of the wife until actual seisin; and therefore can have no interest in her real estates in reversion or remainder, dependant on or after a preceding freehold estate therein in another, until the determination of that estate, and a seisin in him. PER CURIAM.-JUDGMENT AFFIRMED. DEN ex dem, of JAMES SEAWELL v. Sealing is necessary to the validity of all writs, except those issuing to EJECTMENT, tried on the spring circuit of 1830, before his Honor, Judge NORWOOD. at Cumberland. The plaintiff claimed title under a sheriff's deed for the premises in dispute, dated June 2d, 1823, and reciting an execution" which issued from the County Court of New Hanover, against Peter Perry and Dominic Cazaux for $662 90, and produced the record of a judgment against Perry and Cazaux entered up in New Hanover County Court, at August term, 1819, and a fi fa. thereon, tested the 2d Monday of August, 1820, and returnable the 2d Monday of November following, which was returned levied upon the land in question, on the 11th of November, 1820, as the property of Perry, subject to sundry prior levies, made under executions issuing from Cumberland County and Superior Courts, at the instance of the lefendants. The plaintiff also produced a venaitioni exponas tested the 2d Monday of November, 1820, and VOL. III. 36 DEC. 1831. returnable the 2d Monday of February, 1821, which recited the former levy, and upon which the sheriff returned that he had on the 9th of February, 1821, sold the land levied on under the fi. fa. to the lessor of the plaintiff. SEAWELL V. BANK OF CAPE FEAR. The defendants objected that these writs did not confer upon the sheriff a power of sale; and to support the objection, produced the original venditioni exponas, and proved that it had never been sealed with the seal of New Hanover County Court, and urged 1st, that for this reason the writ was a nullity, and 2d, that as the sale took place after the return of the fi. fa. it was made without any authority in the sheriff, and consequently was inoperative. But his Honor overruled the objection, thinking that although the writ was not legally authenticated, yet if the sheriff thought proper to act under and recognize it, it warranted his subsequent sale. The plaintiff also offered in evidence several judgments and executions in favor of the defendants against Perry, and proved that they were in the sheriff's hands at the time of the sale; and that the proceeds of the sale had been applied to their satisfaction; but it appeared that the agent of the defendants had directed the sheriff not to sell under these writs, although he had not withdrawn them, nor paid or tendered the sheriff his fees. The defendants claimed title from Perry under an assignment of a mortgage, prior in time to the lien of the execution under which the lessor of the plaintiff purchased. This was impeached as fraudulent between the mortgagor and Perry, and a verdict being returned for the plaintiff, the defendant appealed. Hogg, for the defendant, argued 1st. That a seal was absolutely necessary to every writ, which issued to a sheriff of a county other than that in which the court was held. (Act of 1797, Rev. c. 474, s. 5. Governor v. McRae, 3 Hawks 226). 2d. He contended, that the rule laid down by the judge in the court below, in effect, gave the sheriff the power of deciding what was valid process and what was not; and of course, enabled him to determine the preference to be given to one of two executions; whereas his office was strictly executive. SEAWELL sd. That if the writ of venditioni exponas was inope- Dec. 1831. rative for want of a seal, the prior fi. fa. which had been returned at the time of the sale did not authorize it. (Barden v. McKinnie, 4 Hawks 279. Amyett v. Backhouse, 3 Mur. 63. Ellar v. Ray, 2 Hawks 568). Gaston and Badger, for the plaintiff, argued 1st. That the want of a seal did not invalidate the venditioni exponas. If not scaled, the sheriff was excused from acting; but if he chose to act, a purchaser was not affected by the want of form. (1 Archb. Pr. 193, 324, Gilb. Law of Evid. 40. Bull. N. P. 234 Peake's Evi. 50. Jackson v. Pratt, 10 Johns. Rep. 387. Cresson v. Stout, 17 Id. 116). 2d. That a sheriff may sell land under a fi. fa. after its return, and without a venditioni exponus; and they commented upon the case of Barden v. McKinnie, and endeavored to show that it stood upon its peculiar circumstances, and that it was inconsistent with the cases of Whea ton v. Saxton, (4 Wheat. 503). Toomer v. Purkey, (1 So. Car. Cons. Rep. 325). Tayloe v. Gaskins, (ante 1 vol. 295.) 3d. That the plaintiff's title was valid under the execution in favor of the defendants, and cited Haywood v. Hildreth, (9 Mass. Rep. 393). Prescott v. Wright, (6 Id. 20). HENDERSON, Chief-Justice.-A writ issued to another. county must be under the seal of the court from which it issues. Without a seal it confers no power on the sheriff; and his acting under it cannot give it validity. This has heretofore been ruled in this court, in the case of The Governor v. McRae. The act of 1797, (Rev. c. 474. s. 5,) dispensing with the sealing of process in thecases mentioned in it, operates only in those cases. And it is a sufficient answer to say, that this is not one of them, and therefore must be governed by the general rule. But if that act has any effect in this case, it is to shew, that a seal is here necessary. For if by the general rule it was not, why make the exception? It is next contended, that the levy under the fieri facias issued from New-Hanover County Court, and returned to BANK OF CAPE FEAR DEC. 1831. the succeeding session of that court, levied on the lot in SEAWELL V. BANK OF CAPE FEAR. dispute, gave the power to sell; and that altho' this case may be embraced by the reasoning of the court in delivering the opinion in the case of Barden v. McKinnie, yet the facts are very different. There the indorsement of the levy was not made until long after the return of the fi. fa. the sale was not made until more than two years after its return day; and in the mean time the defendant in the execution had died. Here, the levy was indorsed at the proper time, the sale made shortly after, and in the life time of all the parties. It is admitted, that the case referred to is a much stronger one than this. But the principle is the same, to-wit, that a sale of lands unA fi. fa. vests der a fi. fa. is in virtue of a power, and not of a property a property in in the thing sold. The latter is the case, as regards goods seized under it in the goods. By the seizure, the sheriff acquires a qualified sheriff, but as to land it confers property in them, and may maintain an action founded upon him only a on that right of property, qualified to be sure, but still it power to sell, Goods may sale of land with is a right of property. He stands charged to the plaintiff in the fi. fa. for their value; and the debtor is discharged to the same amount. It is in virtue of this property, that he makes the sale; and he needs not a venditioni exponas to confer it. He had it before. A venditioni exponas only puts him in contempt for not selling. But in regard to a levy on lands, it is far otherwise. therefore be sold The sheriff makes no seizure; is not liable for the value ; by the sheriffun- the debtor is not discharged to that or any amount; the der a previous levy without a sheriff acquires no possession. He only sells the defenvenditioni; but a dant's estate in the lands. He does not deliver possesout such authori- sion to the purchaser as he does in the sale of goods, but ty is inoperative. only clothes him with the defendant's estate, and leaves him to acquire possession as he can. This shows very clearly, that the sheriff sells by virtue of a power, and not by virtue of a property of any kind. When therefore that which gives the power is withdrawn, the power ceases. As a venditioni exponas can give no power to sell, it is argued that ex necessitate the power given by the fi. fa must remain. The argument would prove much, were it true. For altho' it is admitted, that a venditioni exponas confers no power to sell in the case of a chattel |