
    CLARKESVILLE,
    JULY TERM, 1814.
    Seawell and Jones v. Williams.
    
      \_Scire Facias naming Heirs.~\
    
    This was a writ of error, upon which errors were assigned, for that the Circuit Court who tried this cause, which was an action in ejectment, did not suffer the plaintiff to produce and give in evidence the paper marked C. This was a deed from the sheriff of Montgomery to Seawell, for the lands in question. Seawell had taken out an attachment in Sumner County Court, in the year 1789, or thereabouts, against the executors of Armstrong, and caused it to be levied on the lands of the deceased, who resided and died in North Carolina. It was founded upon the act of 1794, ch. —, § 21. He obtained judgment on this attachment against the executors, and the land attached was sold, but satisfied only part of the debt. He then caused scire facias to issue against the heirs and devisees of the deceased, not naming them, but describing them as the heirs and devisees of Armstrong; and upon two returns that the heirs were not found; he obtained judgment for sale of the lands, &c. Divers executions issued, and upon one of them the lands in question were sold, and purchased by Seawell. * But it being discovered that in this execution a blank for the county, to the sheriff of which it was directed, had not been filled up, another sci. fa. issued to the sheriff of Montgomery, and he sold the same land by virtue thereof to Seawell, and gave him the deed for it referred to in the bill of exceptions and in the assignment of errors as the paper marked C. Seawell, on the trial in ejectment, proved the death of Armstrong and the proceedings at law before stated, and then offered to read this deed; but the judge of the Circuit Court rejected it, being of opinion that the judgment aforesaid for the sale of the lands was wrong, and the fi. fa. and sale under it also, because the heirs and devisees were not named in the sci. fa., the sheriff’s returns, or judgment, or even in the fi. fa. And the question raised by this record comes on now to be argued by Witesides and Haywood, for the plaintiff in error, and by Hays and Orme, for the defendant in error.
    
      
      Counsel for the plaintiff in error. If this were a void judgment, or an erroneous one, the fi. fa., or sale under it, vested a good title in the purchaser; for if it ever should be reversed, the defendant will be entitled, not to the thing sold under it, but to the value thereof. 2 Cro. 698 ; 4 Mod. 161; 5 Com. Dig. 3 B. 20 ; Salk. 688; 8 Rep. 19, 143. If it be a void judgment, then the fi. fa. and sale were also void, and the sheriff, for seizing and selling, was a trespasser. It cannot be said of a void judgment that it authorizes the clerk to issue afi.fa., or justifies the sheriff for seizing and selling ; for if it did justify him, it would not be void, that is, ineffectual to all purposes. Nor could it justify a sale, unless also it justified the purchaser at the sale; for to validate the sale and condemn the purchase at the same time, is not only absurd but impossible. Can it be * supposed that a sheriff shall be treated as a trespasser, who receives process from a court having authority to act upon the subject of that process, because he obeys it ? Either he must execute it, or refuse to execute it. If the latter, then he is governed by his own judgment, and not that of the court; if the former, must he act at his peril ? Must he be ruined, if the court has given a wrong judgment, or must the law protect him ? Surely it must protect him; for he has no means of knowing whether the court has acted properly or improperly. He has not the means of forming a judgment; and if he had the materials, he hath not the knowledge that will enable him to decide. All that he can know is, that the court hath power over the subject, concerning which, by the process, it hath directed him. Will it be said that, for seizing and selling under this]?, fa., the sheriff-is liable to an action of trespass ? He hath done that which the court ordered him to do. Why punish him for the misdoing of the court ? Why not rather punish the court ? If the court is not to be punished for an error in judgment, much less is the sheriff to be punished for acting in a case where he had no power to judge, and so could not commit an error in judgment at all. A judgment is not void but in the single case where’ the court who gives it had no jurisdiction over the subject. Then, indeed, the officer is a trespasser if he acts in obedience to the process which commands execution of it, for he knows well enough that the court hath no power over it. He can well know the extent of jurisdiction, though he may not know all the rules the law prescribes to a court having jurisdiction, for the government and regulation of its conduct. This reasoning is in conformity with 10 Eep. 76 ; 8 Inst. 231; 2 Salk. 674; Carth. 274; Cro. C. 395 ; 1 Str. 711; 2 Str. 1000 ; 2 Wils. 382; 2 Str. 924; 2 Wils. 485; 8 Term, 427. If these * arguments be correct, then the judgment being not void, even admitting it to be violable, the sale cannot be deemed invalid; and if not, then this deed, marked C, is effectual to pass the estate to the purchaser, and ought to have been received as evidence by the Circuit Court.
    But indeed, the judgment is even not erroneous ; for at common law, a sci.fa. against the heir upon a judgment against the ancestor, is for the same purpose as a sci.fa. against the heir upon a judgment against the executor in this country, namely, to have execution against the lands described. The sci. fa. against the heir, under the act of 1784, ch. 4, is bottomed upon the same principles as the sci.fa. against the heir at the common law, and the latter sci. fa. need not name the heir. Lil. Ent. 384 ; 2 Saunders’s.notes on pages 6, 7, 8; 5 Com. Dig. “Pleader,” 3 L 3, 3 L 6. If it be sufficient that the sci.fa. should issue against the heir by description, not naming him, as the above authorities prove, then it is to be considered that judgment may be given on it upon two nihils returned. 5 Com. Dig. “ Pleader,” ch. 3, § O; 2 Inst. 472; 2 Mod. C. 227; Ba. Ab. “ Scire Facias.” If it could not, then in all cases where the heirs or devisees reside out of the State, their lands could not be sold, for on them there could not be any personal service of the sci.fa. And what judgment is it that the court could pronounce on such a sci. fa. ? Certainly not against the heirs by name, for they could not be named anywhere on the -record before the giving of judgment; and, therefore, the court could not name them in the judgment, for the well known form of it is, that the plaintiff shall have execution of the lands descended, &c. It would be inconvenient were the law to require that the heirs should be named; for if the plaintiff should not rightly name them, then all sales of lands belonging to the heirs under executions, not rightly naming them, would be void, * a thing that must necessarily often happen ; when, at the same time, there is no advantage the heirs could have, if named in the sci. fa., that they could not have if only described ; for if by any means they should hear of a sci. fa. against the heirs of Armstrong, they would know that they were the persons meant as well as if the sci. fa. had been against them by name. The idea that every defendant ought to be named, is a mistake; for will not a sei. fa. lie against executors generally ? Will not an action lie against the hundred ? Will it not against the inhabitants of Eraswell ? And in this case in Term Beports, where an action was brought against the inhabitants of the county of Devon, it did not fail because an action in that form was against thé law, but only because the action would not lie in any form. These cases prove that there is not any impropriety in maintaining an action against the defendants who are described and not named. And, surely, there is no inconvenience in maintaining the sei. fa. in that way. On the contrary, great convenience would arise from it; as it will enable plaintiffs to get regular judgments many times, when otherwise a creditor would not be able to obtain any judgment at all, by which the lands of the debtor could be sold.
   Whyte, Judge.

The main question in this cause is, was the judgment void ? And -perhaps the true distinction is that stated at the bar, that a judgment by a competent jurisdiction is not void. Be that as it may, however, I am of opinion it cannot be said of this judgment that it is void. A sei. fa. against heirs generally is good ; and judgment may be pronounced upon two returns. The reason of the thing is strong for this position. Many times the creditor does not know and cannot learn the names of the heirs, nor can find where they are ; he can do no better than describe * them. If they get personal knowledge of the sei. fa., they will know from description that they are the persons intended. But if in all instances they must be named, it will needs happen that in many no judgment at all can be obtained. The practice heretofore is of some weight: in nineteen out of twenty instances, the practice hath heretofore been to proceed in sei. fa. by description and not' by name. Again, I do not think the defendant in ejectment, or other stranger, ought to be allowed to object to the judgment and the sei. fa. when the heirs of Armstrong have acquiesced so long. As to Newnan and Maclin, I did not mean to decide this question.

OveiitoN, Judge.

I concur with what has been said by the other member of the court; and I will now only say that the present objection is by a stranger, who ought not to be heard to complain, when the parties to the judgment are satisfied. The plaintiff in this, as in all other cases, must make out his title; but he can say to Williams, Stranger, stand aside; it is nothing to you whether I had a good judgment or not. The heirs do not complain. If there be any defect, you are not to meddle in that, for they and I are to settle it. The court will say he is a stranger who excepts to a title which is derived through a channel he had no concern with. If the parties acquiesce, why should he disturb them ? As to Newnan and Maclin, if the title were in any respect doubtful, the court could not compel the purchaser to receive it. That was all the court decided. It was enough in that case if the court could see that probable objections could be raised against the title. It may be true that the judgment is not void in any case where the court hath jurisdiction. But without deciding on that point, we can see here that the judgment is not void, and that the Circuit Court has erred.

Judgment reversed.

See Roberts v. Busby, 3 Hay. 299, and cases cited sub. fin., which settle the law on the subject.  