Manton v. Hoyt

Stewart, J., delivered the opinion of the Court. Both parties in this ejectment claim title to the lands in dispute through O’Hern. In April, 1855, O’Hern confessed judgment to Nicholas, who, in April, 1866, caused execution by attachment to be issued thereon, and the lands were seized by the marshal as unoccupied, and so returned. O’Hern appeared, judgment of condemnation was rendered ; fieri facias was issued thereon in 1861, and the lands were sold and conveyed by the marshal to Nicholas.

The defendants claim under this title. In May, 1855, O’Hern conveyed the lands to the Coal Company. After sundry mesne conveyances, they were sold to the plaintiffs in the year 1863, who claim to hold in this way from O’Hern. The only point in the case, is whether the sale under the execution by attachment, was sufficient to vest the title to the lands in the defendants, to the exclusion of the plaintiffs ?

The attachment omitted the clause of scire facias, so far as the lands and tenements are concerned, or the plaintiffs as alienees thereof. It is contended by the appellants’ counsel, that this was such defect as to vitiate the sale, and the plaintiffs’ title was not divested thereby. ²⁶⁴ According to the 30th sec. of Art. 10 of the Code, authorizing the attachment instead of any other execution, the clause of scire facias provided by the 12th section is required to be inserted therein. The execution in this case having been issued in April, 1866, some eleven years'after the judgment, the defendant, according to the provisions of the Act of 1862, ch. 262, was entitled to the same defences, as if there had been a scire facias to revive the judgment. O’Heru, the defendant in the judgment having appeared in the attachment proceeding, and waiving notice, the Circuit Court certainly had' jurisdiction over him, and could rightfully render the judgment of condemnation as to the lands attached, without notice to the plaintiffs in this case.

The failure to give notice to them, as alienees of O’Hern, subsequent to the lien of the judgment, could not vitiate the sale of O’Hern's right to the property at the time of the rendition of the judgment. The omission of the clause of scire facias in the attach- . ment, was without doubt a defect, sufficient to have authorized the Circuit Court, to have set the sale aside, if the objection had been made there, but it did not render the proceedings absolutely void so as to defeat the title of any purchaser brought in question, in a collateral proceeding. Such an irregularity is