
    Miner’s Lessee v. Cassat and Cooper.
    A sale of land by a marshal on a venditioni exponas, after he is removed from-. office and a new marshal appointed and qualified, is not void.
    Such sale, being returned to the court and confirmed by it on motion, and a-deed ordered to be made to the purchaser at the sale, by the new marshal, is valid. The case of Doolittle’s Lessee v. Bryan et al., 14 How. U. S. 563, followed.
    Writ of error to the court of common pleas of Warren county, reserved for decision by the late Supreme Court in bank, in the late-Supreme Court of Warren county.
    The original proceeding was an action of ejectment, brought, in the common pleas, whore the cause went to a jury on the pleadings and the following agreed statement of facts, with the papers-made part of it.
    In this case it is agreed as follows :
    “1. That John Welton is the common source of title. He is admitted to have had a perfect legal title; both parties claim under him.
    *«2. That there was a regular judgment and execution, as set forth in the marshal’s deed, executed by John Patterson, marshal of the United States for the District of Ohio, to the Bank of the-U nited States, for the land in controversy in this case, being a tract of land in Warren county, usually called the John Welton farm. Said marshal’s deed shall be received in evidence, without •proof of anything recited therein, and is herewith filed, marked (C), and made part of this agreed statement of facts.
    ' “ 3. The plaintiff’s lessor agrees that the proceedings recited in said decree are regular, except that said sale, set forth in said deed, should have been made by John Patterson, who was the marshal of said district, at the date thereof, and not by William Doherty, the jDreceding marshal, who, at the time of said sale, had been removed from office ; and the question as to who should have sold said property, and the validity of said sale, is submitted to the court.
    “4. The defendants agree that the said John Patterson was ■duly commissioned as marshal of the United States for the District of Ohio, by commission bearing date April 20, 1829, and that he executed bond as such marshal in due form of law, and entered on the discharge of his official duties as such, on the 11th day of May, 1829 ; and it is further agreed that the paper hereto attached, being a copy of the execution under which said land was ■sold by Doherty, and of his return thereon, etc., shall be received in evidence without.objection; and the same is made part of this agreed statement of facts, marked (A).
    “ 5. Defendants further admit, that the premises in controversy were intended to be conveyed by deed of release, executed in due form of law, to pass whatever title said Welton may have h'ad to .said premises, to Thomas R. Ross—said deed bearing date January •25, 1843, and marked (D) ; and by said Thomas R. Ross to the plaintiff’s lessor—said last-mentioned deed bearing date September 15, 1843, and marked (E), both of which deeds are filed herewith, their ^execution admitted, and are made part of this •agreed statement of facts.
    11 G. It is agreed that the signature to the lease herewith filed, marked (B), is in the handwriting of the said John Welton, and that he took possession of and occupied said property under said lease. Said paper marked (B), is filed herewith, and made part of this agreed statement of facts; and that said premises were surrendered ujj by said Welton, at the expiration of said lease.
    
      “7. It is further admitted that the deed herewith filed, marked ■ (F), and made part of this agreed statement of facts, from the .Bank of the United States to Cassat & Cooper, was duly executed .and that said Cassat is one of the defendants in this case, and that' the other defendants are the heirs .of said Cooper, one of said .grantees.
    “ 8. The deposition of John C. Brodrick, filed herewith, marked (G-), is admitted in evidence, its legal effect to be determined by the court.
    “ Smith & Probasco, Attorneys for Plaintiff.
    “ Dunlevy & Williams, Attorneys for Defendants.”
    Some of the deeds referred to in this agreed statement of facts need not be noticed. That of Patterson to the Bank of the United States recites, first, a judgment in favor of the bank against John Welton and Jonathan Welton, at the January term, 1822, of the United States Circuit Court for Ohio, for $1,892.82; second, a ft. fa. et lev. fa., issued on that judgment, March 17, 1823, to the marshal of the district, returnable in September following; third, the marshal’s return of a levy on personal property, and a levy on the premises in question, an appraisement, and an offer of the premises for sale, with a failure of sale for want of bidders; fourth, a vendí, exponas, issued November 15, 1823, to the marshal of the district, returnable in July, 1824; fifth, a stay of that execution; seventh, an alias writ of vendí, exponas, issued April 12,1827, returnable in July following, directed “ to said marshal,” and the marshal’s return of no sale for *want of bidders ; eighth, a like writ of vendí, exponas, issued “to said marshal,” January 19, 1829, returnable in July following; ninth, the facts, appearing “from the proceedings, that William Doherty, the former marshal, advertised the premises for sale for more than thirty days, and that on the 30th of June, 1829, the premises were sold by outcry, to the bank, for ten dollars and thirty-four cents per acre, equal to two-thirds of the appraised value; tenth, an order of confirmation, entered at the July term, 1829, of which part is thus recited: “And it appearing that William Doherty, the former marshal of this district, is no longer in- office, it is ordered, that John Patterson, the present marshal, execute deed to the purchaser or purchasers under said sale, pursuant to the statute in such case made and provided.”
    The execution on which the property was sold, was directed “to the marshal of the District of Ohio,” and was returned by “ Wm.. Doherty, late marshal.”
    The deposition of John C. Brodrick shows, that Doherty was-' marshal for this district, from March, 1822, till some time in the spring of the year 1829, when he was removed from office by President Jackson, and General John Patterson appointed as his successor. On examination of the bond on file in the office of the clerk of the Circuit Court of the United States for this district, the-witness is able to state that Patterson was appointed marshal on the 20th day of April, a. d. 1829, and gave bond May 11, 1829. The witness declares that the removal and appointment were notorious, and well understood by Doherty and the citizens of Columbus generally; that the removal of Doherty and the appointment, of Patterson were published in the State Journal of the 30th April,. 1829, the paper in which Doherty usually published his advertisements, and printed where he resided. The witness states that immediately after his appointment, Patterson entered on the duties-of his office. He further testifies that on the 2d day of June, 1829, Doherty advertised real estate for sale in said State Journal, to which he subscribed his name as “ Wm. Doherty, late marshal.”
    
    *The plaintiff asked the court below to instruct the jury, that if they believed from said agreed statement of facts, and the testimony made part thereof, that the land in controversy in this case was sold by William Doherty, after his term of office as marshal of tho United States for the District of Ohio had expired, such sale made by said Doherty was void, and did not pass the title of John Welton to the purchaser under said sale, and that the plaintiff had a right to recover. The court refused to charge the jury as; requested, but did charge them, that the sale made by said Doherty after his term of office had expired, was not void, and, as said sale was confirmed by the Circuit Court of the United States for the District of Ohio, the title of said John Welton to the said land in controversy, did pass by such sale.
    The plaintiff then requested an instruction, to the effect that if Doherty knew of his removal, his sale was void; but the charge-was denied, and the jury instructed that the knowledge of Doherty did not invalidate the sale.
    The other instructions are but other forms of the same proposition, and it is not deemed necessary to recite any of the remaining instructions asked or given.
    
      The verdict and judgment being for the defendants, a writ of error was sued out of the late Supreme Court, and it was assigned for error, that the instructions given by the court to the jury were not in accordance with the law, and that the court refused to instruct the jury as requested by the plaintiff. To this was added the general assignment.
    
      Smith & Probasco, for plaintiff.
    
      A. 11. & J. G. Punlevy, P. B. Wilcox, and Taft, Key & Mallon, for defendants.
   Bartley, J.

This case is decided by the principles established in the case of Lessee of Doolittle et al. v. Bryan et al., 14 How. U. S. 563, wherein the court held:

1. A sale of land by a marshal on a venditioni exponas, after he is removed from office, and a new marshal appointed and qualified, is not void.

*2. Such sale being returned to the court, and confirmed by it on motion, and a deed ordered to be made to the purchaser at the sale by the new marshal, such sale being made is valid.

Judgment affirmed.  