Phillips v. Dana

¶1delivered the opinion of the Court:

¶2In this case several errors have been assigned for the reversal of the judgment; but the only one which we deem it necessary to examine, in the decision of the case, is the fourth. The question arising under this assignment of error, is whether the facts proved on the trial, as presented in the bill of exceptions, show a satisfaction of the judgment of Dana against Phillips or not. It appears that an execution was issued on that judgment, which was put into the hands of the sheriff, who, on the return day, levied it on certain real estate of the defendant, and on the same day returned it to the clerk’s office, with an endorsement of the levy, and that he had not sold for want of time. The next day the sheriff went to the clerk’s office, and got the execution, and while he thus had it, Hunt, the agent of Phillips, paid the amount of the debt to the sheriff, who again returned the execution to the clerk’s office, satisfied. By the first return of the execution into the clerk’s office, it became functus officio, and the sheriff, by repossessing himself of it, did not revive its vitality; and therefore he could legally do nothing with it which he could not have done without it. The enquiry then necessarily arises, whether the officer, after he had commenced the execution of the process, by levying on the property of the defendant, and without sale, returning it, could go on and complete the execution of the mandate of the writ, by selling the land, without any further order or authority from the Court; for I presume it will not be denied, that if he could sell the land, and thus raise the money, he not only had authority, but it was his duty to receive the money when tendered to him in discharge of the land, and satisfaction of the debt. It would indeed be a ceremony worse than idle, to require a sale of the land to satisfy the debt, when that object could be attained directly, by receiving the money from the defendant.

¶3It has been for a long time the settled doctrine, that if the officer levies before the expiration of the execution, he may complete the sale as well after as before the return day of the writ. But it was contended, that to do this, he must retain the writ, for if he return it, he can proceed no further without a venditioni exponas. But this is a mistake. It is the duty of the officer, when once he has made the levy, no matter what becomes of the execution, to go on with the sale, and bring the money into Court. The venditioni ex-ponas confers upon the officer no new authority; it only compels him to do that which it was his duty to do. (1) To obtain this process, no further action of the Court is necessary, for it is a writ of course, and it is the duty of the clerk to issue it at any time, in a proper case, on the application of the party. This doctrine will be found to be discussed and distinctly laid down in the case of Clerk v. Withers. (2) The judgment, which was for the plaintiff below, should have been for the defendants. It is therefore reversed, and judgment rendered for the defendants below, with costs.

¶4Judgment reversed.