
    Den on demise of Bickerstaff v. Dellinger.
    From Lincoln.
    The Plaintiff in error, upon a reversal of the judgment, is not entitled to restitution for lands sold under an execution issued upon the judgment, but to the money arising from the sale.
    This was an action of ejectment for lands in Lincoln, of which Bickerstaff, the lessor of the Plaintiff, was seised on the 17th February, 1787, when Henry Dellinger having obtained a judgment against Bickerstaff, in Lincoln County Court, and sued out his execution, the lands were levied on and sold by the Sheriff, and said Dellinger the Plaintiff in execution, became the purchaser; whereupon the Sheriff executed to him a deed for the lands, bearing date the said 17th February, 1787. Henry Dellinger conveyed the lands to Jacob Dellinger, the Defendant, in March, 1796.
    In September, 1798, Bickerstaff brought a writ of error to reverse the judgment which Henry Dellinger had recovered, and upon which the lands had been sold. At September term, 1801, of Morgan Superior Court, the judgment was reversed, and the Plaintiff in error was ordered to be restored to all things by him lost by means of that judgment. This ejectment was brought in the year 1807, and the case was sent to this Court upon he question, “ Whether the reversal of the judgment divested the title which the Sheriff’s deed had conveyed, and entitled Bickerstaff to be restored to the lands ?” The following opinion, forwarded by
   Tayror, Judge,

was concurred in by the Court:

This ejectment is instituted upon the ground that the lessor of the Plaintiff is entitled to a restitution of the land upon a reversal of the judgment under the authority of which it was sold, because Henry Dellinger, the Plaintiff in the original .action, and the Defendant in error, became the purchaser. It must be conceded that the general rule of Law is, that upon the reversal,of a judgment, the PiaintifF in ei’ror is entitled only to the money raised by the sale. If it were otherwise, few persons would be willing to take upon themselves the risque of buying property at a Sheriff’s sale, of which they might afterwards be deprived in consequence of some error in the judgment, to the examination of which they would not be parties, and on which they could claim no right of being heard. If a different rule apply to the case where the Plaintiff himself becomes the purchaser, it must be supported by some authority, and wc cannot perceive, in any of the cases relating to this point, that conclusive force which ought to establish so important an exception to a fixed principle of Law. In this State, lands are liable to be sold upon the Jieri facias, in like manner with chattels. As the Plaintiff in the original judgment, might, under a fieri facias, become the purchaser of goods, he may now become the purchaser of lands, and if the Plaintiff in error is entitled to a restitution of lands, upon the reversal of the judgment, because the Defendant became the purchaser, he must be equally entitled to the restitution of goods for the same reason. It is also a necessary consequence of this doctrine, that the Plaintiff in the original action, purchasing the goods, cannot sell them, so as to convey a valid title against a subsequent reversal of the judgment, but they must still remain liable to the right of restitution, by reason of the original vice impressed upon them in being bought by a pei’son who had a legal right to purchase, and from a person commanded by Law to sell, and having a right to sell to the Plaintiff.

If such were the Law in England, it is probable some cases might be found where'suits have been instituted against, subsequent purchasers of chattel property, or even against the Plaintiff in the original judgment, in behalf of the Plaintiff in error claiming restitution after a reversal. No such cases are recollected. As to the p0jn^ 0f institution, tiio first case that occurs, and 1 be-Revo the strongest in favor of the Plaintiff, is to be found in Cro. Jas. 246. It was there held, that the sale and delivery of a lease to the party himself upon an elegit was void, and that upon a reversal, the Plaintiff in error was entitled to restitution. The Court took this strong difference between an elegit and a, jieri facias, that in the former, the sale and delivery is not in pursuance of the writ; but the writ of jieri facias' gives authority to the Sheriff to sell. They do not go so far as to say, that a sale by fieri facias to the party himself, shall deprive the Plaintiff in error of restitution, nor do they intimate that he is entitled to restitution because the sale was made to his adversary, but because he does not come duly thereto by act of Law. Here the lease was delivered to the party that recovered, by way of extent, without any sale, and therefore the owner shall be restored : so, if upon an ele-git, personal goods are delivered to the party by a reasonable price and extent, upon the reversal of the judgment, he shall be restored to the goods themselves.

This case appears to have been decided upon reasons exclusively applicable to the writ of elegit, between which and the fieri jadas• there is a difference so manifest, as ■to require a different construction of the Law regarding restitution. For, 1st. By an elegit the Defendant’s goods and chattels are not sold, but only appraised : whereas, by a fieri facias they are sold without any previous ap-praisement by a J ury. 2d. By an elegit they are deii-vered to the Plaintiff at a reasonable price and extent: whereas, in a fieri fiadas they cannot be delivered to the Plaintiff in satisfaction of ids debt, but must be sold. Sd. By the first, a moiety of the Defendant’s lands are delivered to the Plaintiff, till his debt be levied out of the rents and profits j but by the latter, they are absolutely sold to the best bidder, whether he bo the Plaintiff or a stranger. The well known effect of a seizure of property under a fien faüas is to divest the title by the authority of Law 5 but under the elegit nothing is finally settled until the inquisition is returned and filed, before which the Court may examine it, and upon the detection of irregularity, may award a new writ.

When a judgment is reversed, the Defendant is to be restored to what he lost by the writ as it was awarded. In a fieri facias he loses the money, because the Sheriff is commanded to make the money out of the Defendant’s goods and chattels, lands and tenements ; and to that, therefore, he1 is properly restored. But in an elegit, the goods themselves are delivered over to the Plaintiff, and upon a reversal, the Defendant must be restored to them. We are therefore of opinion, that the Plaintiff in error is not entitled to restitution even against the Plaintiff in the original judgment, where the sale has taken place under a fieri facias and without fraud.  