Dorsey's Lessee v. Dorsey

Bartol., C. J., delivered the oinnion of this Court. The only question presented by this appeal, is the validity of the proceedings under which the appellee claims title. These are three judgments rendered by justices of the peace, the writs of fieri facias issued thereon, the levy and sale by the constable, the order of ratification passed by the Circuit Court, and the deed from the constable to the appellee. The power to seize and sell lands under an execution issued by a justice of the peace, is conferred by the Code of Public General Eaws, Art. 83, sec. 3.

Such a sale passes no title to the purchaser, until the proceedings shall have been returned to the Circuit Court, and the sale finally ratified and confirmed as provided by Art. 83, sec. 10, of the Code. When land is seized and sold by a sheriff under an execution issued by a Court of record, “it is the sale of the sheriff which vests the title in the purchaser.” Estep and Hall’s Lessee vs. Weems, et al., 6 G. & J., 306 . Not so where the sale is made under an execution issued by a justice of the peace, which vests no title in the purchaser until it has been finally ratified and confirmed. In every case where an officer sells under an execution, it is necessary that he should first effect an actual seizure, for the power to sell is limited -to the property taken by the levy of the writ.

Wright, et al. vs. Orrell, 19 Md. Rep., 155 . The land seized and sold by the officer must be so described, that it may be ascertained and located, otherwise the seizure and sale are void. Williamson, use of Wallis, vs. Perkins, 1 H. & J., 449 ; Waters vs. Duval, 6 G. & J., 76 . By an inspection of the proceedings offered in evidence in this case, it appears that two of the writs of fieri facias, under which the sale was made by the constable, were issued upon judgments of condemnation in attachment.

The description-of the property attached in each case is “ one law office and lot of ground,” without further designation, except that it is called goods and chattels. In the judgments of condemnation it is described in the same way. The writs of fieri facias recite the property condemned and w'hich the constable is ³⁹⁴ directed to sell as “one law office and the lot of ground on which it stands.” The returns to the writs state that they were levied on “ one lot and buildings' thereon,” and that the same was sold. The third writ of fieri facias was issued upon a judgment regularly rendered on a warrant in debt.

But the schedule states the property levied on, to be “ one office and lot, and stable,” and the return of the officer sets forth that he sold “ the lot and buildings mentioned in the schedule.” Under the authorities before cited, it is manifest that such levies and sale are simply void for uncertainty. It has been suggested by the appellee that this defective description is cured by the officer’s return to the writ of attachment, setting forth that he had laid it in the hands of John Dorsey. But it.nowhere appears that the lot was in the possession of John Dorsey, nor is there any description or designation whatever given of the lot of ground seized, or any means furnished whereby it can be identified. The appellee next relies upon the