Koechlept v. Hook's Lessee

Mason J., delivered the opinion of this court. It seems that a judgment had been rendered against one ¹⁷⁸ only, without specifying which, of two defendants, in a suit before a justice of the peace; that an execution was subsequently issued against both, and the real estate of one only, namely, the present appellee, was seized and sold. The constable returned the proceedings to the county court, under the act of 1831, ch. 290, and notice was duly served upon the appellee, to show cause why the sale should not be ratified. This he did not do, but suffered the sale to be ratified and confirmed, without objection.

Upon this state of facts, the appellant prayed the court, in substance, to instruct the jury, that if they should find that the proceedings upon the petition for the ratification of the sale, were had, and that R. V. Hook had notice of such proceedings, then he was concluded by the ratification, &c. This instruction was refused and hence the appeal. ' If the judgment in question was absolutely void, it could not of course bind the appellee; but if it was not void ab initio, it would certainly have been competent for the defendant against whom it was not rendered, to show that fact, by parol evidence, as the judgment discloses upon its face that it was rendered only against one. In either case it would appear, that there was no judgment in fact against the appellee. The question then which arises, is, whether the proceedings in the county court for the ratification of the sale, in which ratification the appellee is supposed to have acquiesced, could have the effect, not to make valid a defective or'voidable judgment, but to create a judgment where none existed before?

The act of 1831, rests throughout upon the-assumption, that there must be an actual judgment against the party, though it be even voidable for inherent or patent defects, in order to base a proceeding by which he is to be divested of his real estate. The second