
    
      DAY vs. FRISTOE & AL.
    
    Appeal from the court of the sixth district.
    A process verbal of the sale of real h&ndwritin^ of the officer selling, cannot support a writ ot seizure‘
   Derbjgny, J.

delivered the opinion of the court. In this case, an order of seizure was obtained by the plaintiff against two lots of ground in this town, struck off to James non at the public sale of the estate of the late Lloyd Day, the plaintiff’s ancestor. The de- * "' 17 fendants are third possessors of these lots, and plead that if the plaintiff has any title to them, it is not such an one as could authorise the summary mode of proceeding by seizure.They further alledge that one of them is the legal owner of the lots, by a regular claim of conveyance from the original proprietor of the town.

We consider that in the present state of the cause, the only question submitted to us is, whether the title of the plaintiff is one of those upon which an order of seizure may at once issue ; for the decree, from which an appeal is claimed, goes no further than setting aside the order obtained, and condemning the plaintiff to the costs of that proceeding.

The priviledge of proceeding by seizure is a remedy granted by the Spanish law in cases where the plaintiff is bearer of a title which imports a confession of judgment. The title of the vendor of real estate is of that class; and as our laws give him a priviledged mortgage on the thing sold, it has always been deemed . sufficient (and we think reasonably) to produce the evidence of such sale, in order to be entitled to the benefit of that mode of proceeding But that evidence must be such as the law requires ; an authentic pub ic act in due form. Here the instrument, on which the order of seizure appears to have been granted, purports to be a copy of a process verbal of the public sale of Lloyd Day’s estate; but that process verbal neither bears the sig nature of the public officer who made that sale, nor is shewn even to be written by him. Whether it may be supported by other proof, upon a trial of the plaintiff’s title in the ordinary course of proceeding, is not a question here : we have only to say that, in its present shape, it is not sufficiently authentic to authorise a summary proceeding by seizure.

Wilson for the plaintiff, Baldwin for the defendants.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.  