Den on Demise of Smith v. Fore

It is only necessary to notice one objection : as that is fatal to the plaintiff’s right to recover. The lessor is a purchaser at a sheriff’s sale, under a venditioni exponas, issuing upon a constable’s levy. The land had been before sold under a venditioni exponas issuing upon the same levy, and one Davis had become the purchaser, and taken the sheriff’s deed. This rendered the levy functus officii, and there was no authority to issue the second venditioni exponas, ündér which the lessor purchased. As the price given by Davis did not sátisfy the debt, a judgment might have been taken in the County Court, upon which a fieri facias might have issued.

The principle, that the debtor is not at liberty to resist the recovery in ejectment, by the purchaser at a sheriff’s sale, does not apply, because the lessor has not shewn, himself to be a purchaser within the meaning of that rule. Such a purchaser must shew a valid execution. The lessor has failed to do so in this case, and is not entitled to the rights of a purchaser at a sheriff’s sale..

Judgment affirmed.