Thompson v. Phillips

(charging jury). The first of the important questions which have arisen in this case, and very ably argued, is, whether the sale of the premises in question by the marshal, under the judgment of Wilson v. Hurst [Case No. 17.808], is void for want of an alias fieri facias, and a levy thereon to October term, 1823. If the writ of fieri facias, with a levy on specific real estate, was the only authority to a sheriff to make a sale, and vested him with the possession or right of property therein, this objection would be fatal; for an execution must be in part executed, or its execution be begun, before its return, in order to give any efficacy to subsequent proceedings upon it, otherwise the authority of the officer expires with his writ. But where the fieri facias and levy are only initiatory process, as the foundation of another writ, which is indispensable to authorize a sale, their effect is very different, because the fieri facias operates, when levied, neither to vest a right of property, or confers a power to sell. The mandate of a fieri facias in both cases is the same, to levy the amount of the judgment, and bring the money into court; the manner of levying on the personal or real property of a defendant, as well as of converting it into money is, however, widely different. In the execution of a fieri facias levied on personal property, the mode of proceeding is regulated by the common law; when levied on land, it is prescribed by the act of assembly of 1705, which authorized the sale of lands on execution. It is therefore necessary to consider the office and effect of a fieri facias and levy, as to the two species of property, in order to decide whether the same rules apply to both. A fieri facias is plenary authority to sell chattels, a levy under it gives the sheriff a property in them, in virtue of which he may, and is obliged to sell. 1 Salk. 323; 6 Mod. 293; [Zane v. Cowperthwaite] 1 Dall. [1 U. S.] 313; 11 Serg. & R. 304; Barnes v. Billington [Case No. 1.015]: [Wayman v. Southard] 10 Wheat. [23 U. S.] 45. After the levy his property in the goods continues; though the fieri facias is returned he may sell. The court may order him to bring the money into court, issue a distringas or venditioni exponas to compel him to sell, he becomes liable for the money by the levy; if he ha.s made a sufficient one, the goods are his own. and he may sell when he pleases, unless otherwise ordered by the court. 5 Bin. 268. 273; [Wayman v. Southard] 10 Wheat. [23 U. S.] 45; 17 Serg. & B. 438; 2 Saund. 343. 344: 2 Law R. 1074. When he begins the execution of a fieri facias, he must complete it; his authority continues though he is out of office. 2 Bac. Abr. 366; 4 Day. Com. Dig. 234; 1 Salk. 12, 318, 323; *10801 Lil. Reg. 767, 824. A distringas or vendi-tioni gives no new authority to sell; it is merely compulsory process (1 Ves. Sr. 196; 4 Day, Com. Dig. 236; Shep. Abr. 547; 6 Mod. 295; [Zane v. Cowperthwaite] 1 Dall. [1 U. S.] 313) to execute a power resulting from the fieri facias, and the right of property by the levy.

As the levy is the operative act, it must be made by an actual seizure of the goods, in whole, or part in name of the whole. The sheriff may seize them by force (16 Johns. Rep. 288), take, and hold possession. The lien on them attaches when the writ comes to his hands till the return day, without a levy, but if no levy is made before it is past, the lieu is lost, and the goods may be taken by a purchaser, or on a subsequent writ. 2 Serg. & R. 157. As to land, the lien attaches by the judgment, and remains though no levy is made on the fieri facias, the sheriff has no right to take possession, or to enter upon it to make a levy, and after levy he has neither the right to possession of property, or power to sell an estate of freehold in the defendant, if the property is improved, and his interest in it is of a nature which must continue for more than seven years, and the rents and profits will pay the incum-brances on it in that time. In this case the property in dispute was improved at the time of the fieri facias, and held in fee, a levy upon it could give no power to sell, the only further act which the sheriff could do was to hold an inquisition and return it to the court; the fieri facias, and all his power under it, became then functus officio. In case of an extent, he must have a liberari facias to authorize him to give possession to the plaintiff; in case of a condemnation, a venditioni exponas to give power to sell, it is an authority given by the act of assembly, additional to that given by the fieri facias. [Zane v. Cowperthwaite] 1 Dall. [1 U. S.] 313; 1 Serg. & R. 99; 4 Yeates, 213, 214. Hence it is obvious that there is no one particular in which the levy on chattels is analogous to a levy on land, where an inquisition is necessary; as the sheriff cannot enter on the land to make it. no act in pais can be necessary, its office is merely to designate the item of real estate which the sheriff selects for the satisfaction of the debt, on the rents and profits of which the inquisition is to be held, in order to ascertain whether it can be exposed to sale.

By the first section of the law, lands are made liable to be seized and sold by judgment and execution. The second section is a proviso, that when an execution is awarded to be levied upon lands, the sheriff shall not by such execution, or any writs thereupon, sell any lands which are sufficient to j3ay the debt in seven years, but shall deliver them to the plaintiff, as on an elegit in Eng-, land. By the third section, which is also a proviso, that if the profits of such lands shall not be sufficient, the sheriff shall so certify on the return of the execution, whereupon a writ of venditioni exponas shall issue to sell such lands, in the manner directed concerning the sale of other lands,- which is in the fourth section, enacting, “That the sheriff, by a levari facias, may seize and take all other lands in execution, and with convenient speed, with or without any writ of vendi-tioni exponas, make public sale thereof on giving the notice prescribed, whereupon he shall make a return thereof, indorsed or annexed to the levari facias.”

The entire silence of the law as to what shall be deemed a seizure of land, before the inquisition directed in the third, or the sale authorized by the fourth section, shows clearly that the time and mode of seizure or levy -were not deemed essential; the second and third sections are conclusive declarations of the legislature, that the fieri facias and-seizure did not authorize a sale of lands which would pay the debt in seven years. Thus excluding all analogy between the effect of a fieri facias and levy on goods, and productive real estate, and leading to the conclusion that the seizure of land was only to describe what the inquest was to pass upon, or the sheriff to sell. What the law deemed essential it prescribed, the holding the inquisition, its return, the venditioni, the notice of sale, its return indorsed or annexed, a deed by the sheriff acknowledged in court, and then, to leave no doubt of the effect of such proceedings, declaring, “that lands so sold shall be held by the purchaser for such estate as the debtor held it.” 1 Smith’s Laws, 57, 59. It would be an unauthorized construction of this law to declare, that after every prescribed requisite had been complied with, the sale was void for not doing an act not required, viz. the making a levy before the return of the fieri facias. It cannot be made by any visible, notorious act, or marks on the ground, or by an actual seizure; it must consequently be done on paper, and giving notice to the defendant of the property selected, with the time and place of holding the inquisition, which is all that could be done by the sheriff going to the premises, and proclaiming a levy in fact. No form or mode of making a levy on land, or the time in which it must be made, are prescribed by the act of assembly; every object for which one is required, either to authorize the sheriff to hold the inquisition, or to protect the debtor, is fully answered by notice to him of the levy and inquisition. It is wholly immaterial whether the levy is indorsed upon the writ before or after the return day, if done in a reasonable time before the notice of an inquisition. Without any reason, therefore, for requiring the levy to precede the return, any positive law prescribing any possible effect to be produced by it, or any adjudication of a state court declaring it indispensable to support subsequent proceedings, we cannot say that it is a fatal defect in the plaintiff’s title.

*1081The first section of the law is limited and restrained by the proviso in the second, in order to hold an inquisition for the protection of the debtor, yet it prescribed no notice of •either a levy or of the inquisition; that was not made necessary till 1806. 4 Yeates. 21; 2 Bin. 215; S. P., 4 Day, Com. Dig. 242. It was then directed that for want of sufficient personal property, the sheriff should levy the real estate of the defendant, return his proceedings to the next court, and give notice of the inquisition (4 Smith's Laws, 831); but it required no notice of the levy, or prescribed the mode or time in Which it should have been made. It would be strange to suppose that the act of 1705 had made a levy before the return of the fieri facias, indispensable to further proceedings, and that the tvant of it was fatal to the power of the court to order, and the sheriff to make a sale under a vendi-tioni; and yet, in 180G. the legislature made no provision for notice to defendant of the levy, while they require it as to the inquisition. The nature and object of the inquisition clearly indicate the intent of both laws, it was the all important proceeding, without which an estate in fee in improved lands could not be sold, the want of it arrested all further proceeding, and notice was prescribed to enable the defendant to show the rents and profits. None was required as to the levy, for the obvious reason that the mode and time of making it had no effect on the rents and profits, and notice of the inquisition specified property on which the inquest was to pass. The construction of these laws by the supreme court tends to the same conclusion, they have always held an inquisition necessary to the validity of a sale, but that it may be held after the return of the fieri facias, though years may have elapsed, and where ■an inquisition has been quashed for irregularity, a new one may be held without an alias fieri facias. [Weaver v. Lawrence] 1 Dall. [1 U. S.] 379. So a sale after the return of the venditioni is good. 2 Bin. 91. 92; 1 Serg. & R. 98. 99; 10 Serg. & R. 261. Though the law directs the return of the inquisition and venditioni, the omission to make it does not affect the validity of the sale. 1 Rawle. 96. 97. If property is condemned at the suit of A, it may be sold on a venditioni at the suit of R, without a new inquisition. 1 Serg. & R. 92. 97. 98, 100.

In this case there was a fieri facias and levy before the return. The levy was set aside as irregular, but a new one could be made under it on the same principle which applies to the new inquisition after quashing an irregular one: whether this was done by correcting the first levy, adopting it as to the property in question, is immaterial. The •court had the power to order a new or amended levy on the old fieri facias, or might adopt and sanction the act of the marshal on the return of the inquisition with the fieri facias and levy, it- was not a matter affecting the power or jurisdiction of the court, but related to the execution of their process, of which they had the right of judging and directing the marshal [Wayman v. Southard] 10 Wheat. [23 U. S.] 45. &c.; 1 Serg. & R. 101. On the return of the inquisition the court issued a venditioni, reciting and adopting what had been done, this is a mandatory writ, which the marshal was bound to obey by a sale, it is the writ of the court, its order, not that of the party who sues it out, having the same efficacy whether issued on a praecipe of an attorney or by special order on motion. It justifies the marshal in its execution 'by a sale, and passes the title to the property sold, if the court has jurisdiction and power to order a sale. But if the proceeding was irregular it can be corrected only by the court on motion, or, if erroneous, by a writ of error: neither the irregularities nor errors of a court will affect the title of a purchaser, under their process, where their power to order the sale has arisen. A superior court may revise their proceedings by their appellate power, if a writ of error or an appeal is presented within the time prescribed by law; but if that time has expired, a judgment or execution cannot be reversed, however erroneous. Though personal property is sold on an execution which has issued contrary to an express act of congress, the sale is valid. Blaine v. The Charles Carter, 4 Cranch [8 U. S.] 328, 333. The purchaser is protected by a settled principle of jurisprudence, that the proceedings of a court of competent jurisdiction cannot be called in question collaterally, when they cannot be examined directly. This is a rule indispensable to the security of property, held by sale under judicial process, especially applicable to the sales of real estate by execution in this state. Vide [Voorhees v. Jackson] 10 Pet. [35 U. S.] 473, 478, ace.

The defendant, or any person claiming under him, has every opportunity of calling into question the regularity of the proceedings, by an application t.o the court before the sale; he may object to the acknowledgement of the deed, when the court will set the sale aside, if they are irregular or erroneous, and he may have his writ of error. If there is just cause for either, justice can be done to the party complaining, without injury to any party; if the sale is set aside, the purchase money is refunded, or its payment not exacted, if the judgment is reversed, the purchaser is protected by the common law and the act of 1765, and restitution of the purchase money only is awarded. Whereas if the sale can be avoided in a collateral action, the grossest injustice is done to the purchaser, he loses both purchase money and land, and the defendant whose debt has been paid by the sale, holds the land without any obligation to refund, Hence has resulted the rule adopted in all courts, that in a collateral action, the only open question is. the jurisdiction and power of the court to order the sale. [Thompson v. Tolmie] 2 Pet. [27 U. S.] 160: 11 Serg. & R. 424. If the writ justifies the officer in its execution, *1082a sale under it is valid. 10 Coke, 76 a, b; 1 Ves. Sr. 195; [Tayloe v. Thompson] 5 Pet. [30 U. S. 370]; [Voorhees v. Jackson] 10 Pet. [35 U. S.] 473, u. In this state, the reception of an acknowledgement of a sheriff’s deed is a judicial act, in the nature of a judgment of confirmation of all the acts preceding the sale, curing all defects in process or its execution, which the court has power to act upon. Vide [Voorhees v. Jackson] 10 Pet. [35 U. S.] 472, 476. When the acknowledgement is once taken, every thing which has been done, is considered as done by the previous order, or subsequent sanction of the court, and cannot be afterwards disaffirmed collaterally. 1 Serg. & R. 101; 4 Yeates, 214; 6 Bin. 254; 2 Serg. & R. 54, 55. The court which directs the sale, can alone judge of the legality of acts done under its authority, 1 Serg. & R. 101; 2 Serg. & R. 54. It follows, that all questions arising on judicial sales, when their validity is questioned in an ejectment, must be those of authority, not .of irregularity, or error in awarding, executing, or confirming process, or acts in pursuance of it. If the power of the court is once brought into action, no tribunal can declare their proceedings nullities; if an act is necessary to be done before their power to sell can be exercised, it will be presumed they had evidence of it unless the contrary expressly appears: as the existence of debts and of minor children to support a sale by order of an orphan’s court (11 Serg. & R. 424; [Thompson v. Tolmie] 2 Pet. [27 U. S.] 161); or a levy on land to support a sheriff’s sale. (11 Johns. 517; [Voorhees v. Jackson] 10 Pet. [35 U. S.] 473, acc.).

■ It has been much pressed on us, that a contrary principle is established in Burd v. Dansdale’s Lessee, 2 Bin. 80, and Saxton v. Wheaton, 4 Wheat. [17 U. S.] 503; but we think them perfectly in accordance with our views of the law. In the former, the levy had been set aside by the court with directions “to levy anew,” á sale was made without any new levy, which the court declared void expressly on the ground, of “the venditioni exponas having issued contrary to the order of the court.” 2 Bin. 92. In Saxton v. Wheaton the sale was made under the fieri facias, which authorized a sale of land by the law of Maryland in force in the District of Columbia (without any other process or the acknowl-edgement of the deed to the purchaser), in the same manner as the sale of a chattel. The levy then was the all important act to authorize the sale, and as in the case of goods must be made before the return, according to the construction put on the law of Maryland [Wheaton v. Sexton] 4 Wheat. [17 U. S.] 506, though it is no authority for a similar construction of the law of this state, which is widely different. It is therefore our opinion that the defendants have failed in sustaining their first objection to the plaintiff’s title.

The next objection is. that the lien of Wilson’s judgment having been lost for the want of a scire facias, under the act of 1798, the marshal’s sale gave no title to the property in controversy. The terms of this law extend to all judgments, in any court of record within this state, which are broad enough to take in those in this court; its object is declared to be “to prevent the risk and inconveniences to purchasers of real estate, by suffering judgments to remain a lien for an indefinite length of time, without any process to continue or revive the same,” which apply in whatever court such judgments are rendered. We cannot consider it as a mere process act, it is a part of a great system of jurisprudence, for the safety and protection of purchasers, from secret or dormant incumbrances or deeds, long adopted, and amended from time to time, as occasion required existing evils to be remedied by supplementary provisions. No form of process is prescribed for enforcing a judgment, the plaintiff is required to do certain acts to continue the lien of his judgment, partaking of the nature of an act of limitations, a recording act, or a supplement to the law for docketing judgments, and destroying their lien by relation and compelling an entry of satisfaction. 8 Serg. & R. 379. So it seems to have been considered by the court and bar in Hurst v. Hurst [Case No. 6,931]. without questioning its application to the federal courts, except as between one judgment creditor and another; that question does not arise here, as the defendant is a purchaser, both under a deed from the defendant in the judgment, and under the sheriff by deed acknowledged in open court. The effect of the law in all cases to which it applies, is to absolve the property from the lien of the judgment, as completely, as in the case of a deed or mortgage not recorded in the time prescribed by the recording acts, a judgment not docketed, or fieri facias not delivered to the sheriff. The questions arising under it are those of property, title, and the rights of purchasers for a valuable consideration, on the faith of a law providing for their case. It cannot be doubted that in a suit in a state court, this law would be the rule of decision on the rights of the parties; it is difficult to perceive a reason why a different rule should be adopted in this court, merely because the-plaintiff being a citizen of another state, may bring his suit here or in the state court, at his option. Both courts administer the laws and jurisprudence of the state, the rules of property and title are the same, as well as the mode of transmission by judicial process; all regulated by state laws, there ought to be one uniform course of adjudication upon them. If a judgment which by the law of the state has lost its lien, can be made the basis of a sale by the process of this court, and the sale be held valid to pass the title, so that a purchaser under the defendant, or the judicial process of a state court, cannot avail himself of the protection of the state law, we must adopt this principle. That a judi*1083cial sale of real estate in Pennsylvania, which is void by its law, is valid in this court, and a judicial sale, valid to pass the title by the laws and in the courts of the state, is void by the laws of the United States. We do not feel authorized to so decide in a suit at common law, in which the rights of both parties depend on the laws of the state, on a subject matter on which congress possesses no constitutional jurisdiction, nor has in any matter assumed its exercise. There can therefore be no collision between the state laws, and the constitution, laws or treaties of the United States, so that the case comes clearly within the provisions of the thirty-fourth section of the judiciary act. Its application is not confined to state laws in force at its passage in 1789, but extends to all laws which affect the right in litigation at the trial, which prescribe a rule for the judgment to be rendered, embracing the whole subject of the transfer of property, liens upon it, and ail consequent judicial proceedings, whether in courts of common law, or special jurisdiction. These are subjects of internal police and state regulation, over which the states have delegated no power to the federal government, on which the states can legislate in any manner, and to any extent, not prohibited by the constitution of the state or the union. Laws which relate to practice, process, or modes of proceeding before or after judgment, are exceptions to the thirty-fourth section, as congress have legislated on the subject. The supreme court of the United States have established the distinction to be this, state laws, which furnish the court a rule for forming a judgment, are binding on the federal courts, not laws for carrying that judgment into execution, that is governed by the acts of congress and the rules and practice adopted pursuant thereto. [Wayman v. Southard] 10 Wheat. [23 U. S.] 24-51, 65. This distinction is illustrated in the case of Bank of Hamilton v. Dudley, 2 Pet. [27 U. S.] 525, 526. The occupying claimant law of Ohio, passed in 1810, was held to be a rule of property and decision in the federal courts, but that they could not carry it into effect by changing their modes of proceeding, as established and regulated by practice and the acts of congress, though the right of the party to the benefit of the law, was not impaired by the inability of the court to act upon it in the manner directed.

Peeling bound, then, to adjudicate upon the rights of the parties in this case, according to the law of 179S. we proceed to the question of its effect on the judgment of Wilson v. Hurst [supra], A capias ad satis-faciendum was issued to October, 1791, returned non est inventus, without any further proceedings for fourteen years from the date of the judgment, and seven years from the passage of the law, which contains no exception, admits of no construction, or any substitute for the scire facias, and its service on the terre tenants, who were purchasers, and for whose protection the law was passed.

It has been strenuously urged by the plaintiff’s counsel, that this law admits of the same construction which has been given in England and this state to the statute of 13 Edw. I., st. 1, c. 45,1 Ruffh. St. 109, directing a scire facias where no execution had issued within a year and a day, but we can perceive no analogy between them. That provided and extended a remedy, by process, to enforce a judgment, this limits, restrains and annuls its lien, making all process to enforce it of no effect; that cured a mischief putting a plaintiff to a new suit, this protected a purchaser from the mischief of an indefinite lien; that had for its object an award of execution, in virtue of the scire facias, this made one indispensable, to save the lien of the judgment for a term of five years. Vide 3 Rawle, 12, 13. As the statute of Westminster was a remedial one to the plaintiff, it was liberally construed in his favour, so that when an execution had been taken out and not returned, entries on the roll of continuances by vice comes non misit breve, would authorize an alias fieri facias to issue at any time, on which a levy could be made on real or personal property. Hence arose the opinion that the judgment remained a lien on land, while ever the plaintiff could take out a fieri facias; it followed, that the lien of the judgment being as indefinite as the length of the continuance roll, produced the very evil which wras intended to be remedied by the act of 179S. A strong illustration of the effect of this construction of the statute of Westminster, if applied to purchasers of real estate, is furnished in the case of Lewis v. Smith. A pocketed fieri facias had been continued eleven years, by the entry of vice comes non misit breve, after an alias had issued, and the alias was held to have issued regularly. 2 Serg. & R. 154, 158. In that case the levy was on personal property only, and so not affected by the act of 179S, had it arisen before its passage, and a levy made on lands in the hands of a purchaser, no one could have doubted the wisdom, justice or policy of the law, for the purchaser would have no means of ascertaining from the record what was due on the judgment at the time of his purchase, and have continued exposed to every inconvenience which the legislature intended to remove.

If a doubt could exist, whether such a case or the one before us comes within the preamble and the enacting words of the first section, it would be removed by the third, which requires the scire facias to be served on the persons occupying the real estate, on the defendant, his feoffees, or their heirs or administrators. &c. It would be a perversion of the law to construe a capias ad sat-isfaciendum issued in 1791. to be a scire facias issued in five years after 1798; a *1084return of non est inventus to be a service on the terre tenants, the defendant or his feoffees, or a capias ad satisfaciendum returned non est inventus, to be a fieri facias continued fourteen years by an entry of vice comes non misit breve. No decision of the supreme court of the state has been had, which has settled the construction of this law as to its application to land in the hands of a purchaser, under circumstances like the present, or established any principle which would bring this case within the doctrine of Lewis v. Smith. We cannot consider the opinions or declarations of the judges, that the act of 179S is analogous to the statute of Westminster, to be such an adjudication of the point as makes it our duty to consider the construction of the law to have been settled as a rule of property, 1 In this court the question is entirely open, and being free to decide upon our views of the law, we have no hesitation in instructing you that as its requisitions have not been complied with, the judgment of Wilson had ceased to be a lien on the property in question before 1803. The consequence is, that the incumbrance on the property having been removed by the operation of the act of. 179S, the purchaser under Hurst must hold it under his conveyance; for a scire facias issued after the five years could not restore the lien so as to affect a purchaser, though it would keep it alive as to the defendant, who does not come within the words or policy of the law. This objection to the plaintiff’s recovery is therefore fatal, and would render it unnecessary to consider the remaining ones for the purposes of this case; but as they would be equally decisive if. they can be sustained, as they are of great importance, and have been fully argued, we feel it our duty to express an opinion on one. It must arise in this court on future sales of real estate, on which there is an incum-brance older than the one under which it is sold; every consideration calls for its speedy decision, it arises directly in this ease, and is as vital a question as those already disposed of. Had it been first considered and decided against the plaintiff, the others would have beeu as unnecessary for this cause, as this may be now; but the order in which the court takes up the various questions in a cause does not make their opinion on the last more extra judicial than the first, where they all arise in the cause, and could not be evaded if they were presented singly, they ought to be decided.

The third objection to the plaintiff’s recovery is, that the sale by the sheriff in 1815, on the judgment of Tompkins v. Hemphill, in the court of common pleas, operated as a discharge of this property from all prior incumbrances: and that, by the sheriff’s deed, Newman held an unincumbered title, admitting that the judgment of Wilson v. Hurst was till then an existing lien. This objection presents a question wholly new in this court, arising under the fourth section of the act of 1705, on which an indefinite number of titles depend, yet for more than a century after its passage it remained unsettled; though often discussed at the bar and on the bench, the supreme court of the state have repeatedly and expressly declared it open (Keen v. Swaine, 3 Yeates, 562, 564; Patterson v. Sample, 4 Yeates, 316; Young v. Taylor, 2 Bin. 231); and so it remained till 1S26. If the effect of a sheriff's sale under a younger judgment depended on general principles, we should be bound by the opinion of the supreme court of the United States in Scott v. Rankin. The plaintiff claimed real estate on a sheriff’s sale to himself under the older judgment due to himself; the defendant claimed under a prior sheriff’s sale to himself, under a younger judgment due to him. The court declared it as an “universal principle, that a prior lien gives a prior claim, which is entitled to prior satisfaction out of the subject it binds, unless the lien is intrinsically defective, or- be displaced by some act of the party holding it, which shall postpone him in a court of law or equity. The single circumstance of not proceeding on it until a subsequent lien has been obtained and carried into effect has never been considered as such an act. In the case at bar the judgment is notice to the purchaser of the prior lien, and there is no act of the legislature to protect the purchaser from that lien.” [Rankin v. Scott] 12 Wheat. [25 U. S.] 177. The second sale under the elder judgment was held to pass the title. This decision is authoritative on this court, and settles the general principle, that the prior lien is entitled to prior satisfaction; the only question which would remain is, *1085■whether the legislature have protected the purchaser under the younger lien against the operation of this principle. After providing for the sale on execution of lands, the rents and profits whereof would not pay the debt in seven years, and the delivery to the plaintiff on a liberari facias of lands which would so pay the debt, to be so held by him as of his free tenement till his debt was paid, the fourth section declares the effect of both a sale and an extent: “All which said lauds, tenements, hereditaments and premises, so as aforesaid to be sold or delivered by the sheriff or officer aforesaid, with all their appurtenances, shall or may be quietly and peaceably held and enjoyed by the person or persons, or bodies politic, to whom the same shall be sold or delivered, and by his and their heirs, successors and assigns, as fully and amply, and for such estate and estates, and under such rents and services as he or they for whose debt or duty the same shall be so sold or delivered, might,1 -could or ought to do at and before the taking thereof in execution.” 1 Smith’s Laws. -59. A previous act passed in 1700, had provided for the sale of lands on execution and appraisement, after which it declares, “such lands shall be and remain a free and clear estate to the purchaser or creditor, to whom they are so made over or sold, his heirs and assigns for ever, as fully and amply as ever they were to the debtor.” Id. 7. In the sixth section of the • act of 1705, after providing for the sale of mortgaged lands on a levari facias, or their delivery to the mortgagee for the want of buyers, the effect of such proceeding" is declared to be, “and when the said lands and hereditaments shall be so sold or delivered as-aforesaid, the person or persons to whom they shall be so sold or delivered, shall and may hold and enjoy the same with their appurtenances. for such estate or estates as they were sold or delivered, clearly " discharged or freed from all equity and benefit of redemption, and all other incumbrances made or suffered by the mortgagors, their heirs and assigns, and such sales shall be available in law and the respective vendees, mortgagees or creditors, their heirs and assigns, shall hold and enjoy the same, freed and discharged as aforesaid.” Id. 00. In the eighth section is a proviso, “that no sale or delivery which shall be made by virtue of this act, shall be extended to create any further term or estate to the vendees, mortgagees or creditors, than the lands or heredita-ments so sold or delivered shall appear to be mortgaged for by the said respective mortgages or defeasible deeds.” Id. 61. In giving a construction to the fourth section of the act of 1705, we cannot pass over the striking difference, between the effect of a sale or- delivery of lands under that, and the act of 1700; the latter says it shall be. and remain, “a free and clear estate,” “as fully and amply as ever they were to the debtor,” which of course removes all in-cumbrances done or suffered by him. Had it been intended that the same effect should be given to a sale or delivery under the act of 1705, the same words would have been used, whereas the words “free and clear estate” are omitted, and the words “as fully and amply as ever they were to the debtor,” are carefully supplied by “as fully and amply and for such estate and estates and under such rents and services, as the debtor might or could do, at or before the taking them in execution.” It would be carrying construction to an unwarrantable extent, to hold these two provisions to have the same meaning; but if we could do this, it would be in direct contradiction to other parts of the act of 1705.

The second section directs, that in case the rents and profits will pay the debt in seven years, “the lands shall be delivered on an extent, in the same manner and method as lands are delivered upon elegits in England.” Now the settled rule in England was then, and is now, that If a creditor by statute, recognizance, or judgment, takes the land of a debtor by elegit, a creditor by an elder in-cumbrance may levy on the moiety of the same lands, and hold it by his elegit (Yel. 12; Cro. Eliz. 797; Noy, 47; 1 Goldes. 38; 3 Leon. 239; 4 Leon. 10; Co. Litt. 289, b; Law Ex. J. 184, 186; Gilb. Law Ex. 55); the reason for which is, that the first judgment binds the moiety of the land, and the second can extend only the fourth part; therefore if the last judgment extends thé moiety of the whole, the first judgment shall extend from him the half, because a moiety by the statute, is to be attendant to satisfy the first judgment (Gilb. Law, Ex. 55). Where an execution is levied on goods, the rule is different, because the judgment binding only from the delivery of the fieri facias; the first -which comes to the hands of the sheriff, is entitled to prior satisfaction. By applying the English rule as to elegits, -instead of the fieri facias, the legislature have conclusively declared, that an extent on a younger judgment, shall not postpone the elder judgment, but that the lands 'may be taken from the younger creditor. The words in the fourth section, “to hold to him as his free tenement for the satisfaction of his debt,” &c., are taken from the writ of elegit, Fitzh. Nat. Brev. 588, they are used because a remedy by assise is given in case of eviction, still the tenant by eligit has no freehold but only a chattel interest, which devolves on his executors. 2 Co. Inst. 396; 2 Saund. 68, note. These words cannot therefore give to the younger creditor any right to hold the land on an extent against the prior creditor, while his judgment is unpaid; and as the law applies equally to lands sold on a venditioni exponas or delivered on a liberan facias, the conclusion is inevitable. That as the right of the prior judgment is not affected by a delivery on a younger one, *1086it cannot be impaired by a sale under the younger; the words of the law admit of no distinction, “all land so as aforesaid to be sold or delivered,” shall be held and enjoyed by the person, “to whom the same shall be sold and delivered.” Nor does it admit of the construction, that creditors who receive possession under a liberari, shall hold and enjoy the land against a prior judgment creditor, as it would be contrary to the law of eligit in England, adopted expressly in the second section. It necessarily follows, that as the purchaser from the sheriff is on the same footing, he must hold subject to prior judgments. The creditor who holds the lands till the debt is paid, or the one who purchases, takes it as the debtor held it (and to remove all doubt the law defines the time), at or before the taking thereof in execution; not before judgments had been rendered against him. Taking also the second and fourth sections of the law, in connection with the sixth, which defines the effect of the sale or delivery of mortgaged lands, the meaning of the fourth is still, plainer; the land shall be held and enjoyed freed from all equity of redemption and all incumbrances made or .suffered by the mortgagor, his heirs and assigns. If it was intended that the same effect should be given to a sale, or delivery on execution on a judgment, it would have been so declared; or if it had been intended that the same effect should be given to a sale and delivery on process on a mortgage, as on a judgment, the same words would have been applied to the former, either by repeating them, or a reference to the fourth section. Hence, we are clearly of opinion, that a sheriff’s sale under a judgment, pursuant to the fourth section, has no greater effect than to pass the estate as the debtor held it, when taken in execution, and can no more extinguish or impair the • lien of an older judgment, than a deed from the debtor. When the legislature intended to discharge the land from incumbrances, they did so in express terms, the two sections are parts of the same law and same system, providing different modes of selling lands on a judgment or a mortgage; it was their peculiar province to define the effect of the respective modes of sale and delivery, on the incum-brances existing at the time. In our opinion, it would be judicial legislation for us to so construe the law, as to confound distinctions plainly made. It is not for us to inquire into their reasons, or the sound policy of the one or the other mode; the law has defined the effect of both modes of proceedings too plainly to be mistaken. We can perceive neither in the words, nor manifest intention of the law, any thing to exclude from this case, the universal principle laid down by the supreme court, in Scott v. Rankin, that the prior lien is entitled to prior satisfaction, nor any thing in the law, by which the purchaser under a younger lien can be protected from its application. But if we are wrong in this view of the case, and the true meaning of the law is, to give to both modes of proceeding the same effect, the case of the defendant requires us to go much further. A sale under a mortgage discharges the land, only “from incumbrances made or suffered by the mortgagor, his heirs and assigns,” leaving it subject to incum-brances upon it, when it came to his hands, if a sale under a judgment has no greater effect, the defendant cannot make out his case. The plaintiff claims by a sale, under a judgment against Charles Hurst, before he had made any conveyance, the defendant claims under a sale made on a judgment against Hemphill; he must therefore establish the proposition, that such a sale discharged the land from all incumbrances upon it, made or suffered by any former owner. This will require the fourth section to be stretched, not only so as to cover the sixth, to carry it not only to the full extent of the act of 1700, by giving the purchaser “a free and clear estate” in the lands as fully and amply as ever they were to the debtor, but further yet, to give “a free and clear estate, as fully and amply,” as any former owner had held it, before any incumbrance whatever existed. It would be deemed a bold construction of the sixth section, to hold a sale under a mortgage to be a discharge of incumbrances made or suffered by any person who had owned the land before the mortgagor; it would be overlooking entirely the definition of the effect given by the legislature, and substituting one made by the judiciary in opposition to it. And if the point were new, it would be a still bolder assumption, in carrying the effect of a sale under the fourth section, so far beyond either the sixth section of the act of 1705, and even beyqnd that of 1700. The proposition is a startling one, as a matter of construction on the whole system of state jurisprudence, in relation to selling land for debts. By an act of assembly passed in 1705, the orphan’s court was authorized to sell the lands of an intestate for the payment of his debts, maintenance and education of children, but it did not define the effect, of such sale. 1 Dall. Laws, Append. 44, 45.

In 1794 another law was passed, declaring, “that no lands so sold shall be liable in the hands of the purchaser for the debts of the intestate.” 3 Dall. Laws 530. This is much more explicit, than the fourth section of the act under consideration, but it certainly cannot be held to discharge the land from any debts, other than those due by the intestate. In the case of Moliere v. Noe, 4 Dall. [4 U. S.] 450, 454, it was strenuously contended that it did not extend to judgments against the intestate; in deciding that the purchaser held the lands discharged from such judgments, the supreme court of this state did not intimate the doctrine that the land was not still bound by incumbrances suffered by former owners, or construe the act of 1794 *1087to extend to a mortgage given by the intestate himself. On the contrary, they declared a mortgage to be on a different footing from a judgment, and that the orphan’s court had no power to sell a greater estate, than the mortgagor was possessed of. This court would not be the first to declare, that • a. sheriff’s sale under the act of 1705, would discharge the land from incumbrances prior to the judgment on which it was sold, when a sale under the act of 1794 would not discharge it from the lien of a mortgage given by the intestate. We could not construe the deed of the defendant in the judgment, conveying the estate in the words of the fourth section of the act of 1705, as a covenant to pay existing incumbrances; the purchaser would buy at his risk; a covenant in the words of the sixth to pay “incumbrances 'made or suffered by the mortgagor,” would not extend to judgments against a former owner, nor would a covenant to pay “the debts of an intestate,” in the words of the act of 1794, create any obligation to pay any debt, not of the intestate, though it was a charge upon .the land in his hands.

We cannot give to a sheriff’s deed, made in pursuance of a law defining its effect, any greater efficacy, than the deed of the debtor, made with covenants in the words of the law. If then the question presented by this objection remains to be decided by our opinion of the act of assembly, or the principles settled by the supreme court of the United States, we should not hesitate in declaring, that the sale under the judgment against Hemphill, did not impair the plaintiff’s right of recovery. If land after being sold by order of an orphan’s court remains charged in the hands of a purchaser, with a mortgage given by the intestate; a fortiori, land sold by the sheriff remains charged with all .in-cumbrances, prior to the judgment on which it was sold, and so we should feel it our duty to instruct you, if we . are governed by the acts of assembly, the case of Scott v. Rankin [supra], decided in 1827, or Moliere v. Noe [supra], decided in 1806. But we find that the supreme court of this state in 1820 gave a different construction to the act of 1705 in Com. v. Alexander, 14 Serg. & R. 257, etc. In that case they decided that a sheriff’s sale discharged the land from all prior judgments against the defendant, as whose property it was sold, and any other, person from whom it came to him. In Barnet v. Washebaugh they applied the same rule as to a legacy ehar-.ged upon the land. 16 Serg. & R. 410. In Willard v. Norris they held that a sale on a judgment discharged the land from a prior mortgage. 2 Rawle, 56. In M’Lenahan v. Wyant the court declare the same rule to be applicable to all judicial sales, whether by an order of orphan’s court, or by a sheriff; and that they divest all liens whether general or specific. 1 Pen. & W. 112, 113. Such has been the course of adjudication in the court of the last resort in the state for the last four ■years, in direct affirmance of the doctrine contended for by the defendant’s counsel; it is now a rule of property and title, and as a settled construction of a state law, it is deemed to be a part of the law itself, and, generally speaking, as much a rule of decision in the federal courts under the thirty-fourth section of the judiciary act, as the text of which it is the judicial exposition. [Shelby v. Guy] 11 Wheat. [24 U. S.] 367. The extinguishment of a prior lien is not impairing the obligation of a contract, for none exists between the prior creditor, the sheriff, or his vendee; the effect of the law so construed divests a vested right, but unless this' right is founded on a contract, it is not obnoxious to any prohibition in the constitution of the United States. [Satterlee v. Matthewson] 2 Pet. [27 U. S.] 412.

Those are the settled principles of the SUpreme court of the United States, to which' •we must conform; they will yield their own construction of the statutes of a state to that of the state courts previously made, respect their “local common law and usage, and administer the jurisprudence of the states as their own courts do. [Bell v. Morrison] 1 Pet. [26 U. S.] 359, 360: [Brown v. Van Braam] 3 Dall. [3 U. S.] 344; [M’Keen v. Delaney] 5 Cranch [9 U. S.] 22, 32; [Polk v. Wendal] 9 Cranch [13 U. S.] 87; [Martin v. Hunter] 1 Wheat. [14 U. S.] 379; [Shipp, v. Miller] 2 Wheat. [15 U. S.] 316; [Thatcher v. Powell] 6 Wheat [19 U. S.] 119; [Elmendorf v. Taylor] 10 Wheat [23 U. S.] 152; [Shelby v. Guy] 11 Wheat. [24 U. S.] 361; [Jackson v. Chew] 12 Wheat. [25 U. S.] 153; [Bank of Hamilton v. Dudley] 2 Pet [27 U. S.] 505, 556; [Bell v. Cunningham] 3 Pet. [28 U. S.] 85; [Hollingsworth v. Barbour] 4 Pet [29 U. S.] 468; [Society for the Propagation of the Gospel v. Town of Pawlet] Id. 392. They will hold a case under advisement after argument when it turns on a point of local law depending in a state court; and, though they will hold it not to be conclusive authority, will pay great respect to it. [Bank of Hamilton v. Dudley] 2 Pet. [27 U. S.] 520, 521. So where there had been an uniform course of professional opinion and practice. [Gardner v. Collins] 2 Pet. [27 U. S.] 85. The same rule will not be applicable to a single decision of a state court, where the supreme court of the United States had previously decided otherwise. [Shelby v. Guy] 11 Wheat. [24 U. S.] 367, 369. But we do not fed at liberty to make the exception in this case, especially as the legislature at their last session, with full knowledge of this course of decisions, have not made any change of the law as to the lien of judgments, though they have done it as to mortgages on land sold under a younger judgment. Though this is not a legislative construction of the fourth section of the act of 1705, yet it is an implied sanction of its judicial exposition. As the case of Rankin v. Scott was directly in favour of our construction of the law of the state, prior to Gurney v. Alexander, and was *1088decided only eight months afterwards, and first promulgated, it was not without some difficulty that we came to the conclusion, that though it was the decision of a court by whom our judgments can be revised we could not apply it to this case. An anxiety to administer the law of the state in this court, by the same rules which prevail in the highest judicial tribunal of the state; to be governed by the most liberal principles of comity and respect, which the supreme court of the United States have adopted in relation to state adjudication, and to give the most free construction to the thirty-fourth section which it can authorize, has induced us to this course. It is necessary to create confidence and preserve harmony between the courts, which, organised under different governments, administer the same laws; and this court ought never, unless in a very clear case, to decide in opposition to state laws or judicial decisions. Cases of doubt and difficulty should be referred to the supreme judicial tribunal of the union. Had the case of Scott v. Rankin been first decided (or arisen under the act of 1705) we should have followed it, though subsequent decisions of the state court had been different. The case of Huidekoper v. Douglass, 3 Cranch [7 U. S.] 1, has been uniformly adhered to in this court, though it turned on the construction of a land law of this state, which the supreme court of the state have ever since construed differently. But as the decision in Gurney v. Alexander was first given, is decisive of the question, and has since been followed in all the courts of the state, we felt it our duty to instruct you, that the sale under the judgment against Hemphill gave the defendant a title to the premises in question, un-incumbered by the judgment of Wilson. It is satisfactory to us to know that the cause is in a train for the correction of any error we may have committed.

For reasons applicable to one of the judges, no opinion will be given on the fourth question made in the cause. Though we have referred to the act of 1703 in relation to mortgages, by way of illustration, we must be distinctly understood as expressing no opinion on the effect of a sale under a judgment, on a prior mortgage. The defendant, in our opinion, is entitled to your verdict.