Opinion
May, 1798.
Bayard moved to set aside the sale of the intestate's real estate, which had been made upon the execution issued in this case. It appeared that the action in which the judgment was obtained was an amicable suit and had been referred to auditors, who appeared from the face of the proceedings to have been appointed by the parties in vacation and not by the prothonotary. The objection relied on arose from the 6th section of the Act [ 2 Del. Laws 1069] entitled an Act to revive etc. an Act to compel executors to give security etc., passed 2nd February, 1793. Upon the ground of this section, it was contended that the judgment on which the lands were sold was no lien upon them and, of consequence, could furnish no authority on which to sell them.
The case was argued by Bedford and Read in support of the sales.
NO misconduct can be imputed to the sheriff in making the sales. They appear to have been fairly conducted. But however the Court might wish to confirm fair sales, their decision must conform to the law on the subject. The Court conceive the Act of Assembly is conclusive, which, by declaring that a judgment, such as the one in the present case, should not affect and bind real estate, has rendered it a nullity in respect to lands. It is the same, therefore, as if the lands had been sold without any judgment. The practice has been since the Act to pursue its provisions, and the Court are unanimously of opinion that the sales ought to be set aside.