Opinion
March Term, 1794
In ejectment, the word tenement, with metes and bounds, is sufficiently certain. Sale of land by sheriff, when there is sufficient personal property, is good as to purchasers. The want of forty days advertisement, or the land's not being sold until a day or two after the day appointed, will not vitiate the sale. Dictum by the Court: If a sheriff sells real property, when there is sufficient personal, he will be liable to an action by the party grieved, unless the party does not show personal property sufficient to satisfy the execution.
EJECTMENT. The declaration stated the lease to be of a messuage and tenement, bounded by metes and bounds particularly expressed, including a tract of 263 acres of land. Objected, this description is too uncertain. The word tenement is so uncertain the sheriff will not know how to deliver possession. But per curiam, it is certain enough. The word tenement includes all things which may be holden; and a tenement bounded in such manner as described in this declaration is the same thing as a parcel of land so described, and as certain and more legal. The defendant's attorney then informed the Court he was prepared to prove that the sheriff who sold this land to the plaintiff under an execution issuing from Hillsboro Court, in behalf of the State, has seized the land when there was personal estate enough in the defendant's possession to satisfy the debt; and also that the sheriff had not sold the land on the day appointed by the advertisement, but a day or two afterwards; and, also, that he had not advertised for the space of forty days previous thereto, as the law required; and if the Court thought these evidences material, that he could produce them. Thereupon WILLIAMS, J., said if the sheriff sells real property when there is personal enough, it makes the sheriff liable to an action of the party grieved, but will not vitiate the sale to the purchaser; otherwise, no man would be safe in purchasing lands at a sheriff's sale; and that he had never known it required that plaintiff in such case, who was the purchaser, should prove forty days advertisement, which it certainly would have been at some time or other, if it ever had been thought material or necessary; and moreover, the sheriff may lawfully sell the land of the defendant where he (25) does not show him personal property sufficient to satisfy the execution. It would be absurd to say that the sale of land should in no case be good where the defendant had personal property. Were this the law, defendant might conceal his personal property. Suppose the sheriff comes with his execution, and the defendant shuts his doors against the sheriff, the sheriff cannot break them open; and shall this disappoint the judgment creditor? As to his not selling on the day appointed, but a day or two after, this is not absolutely unlawful. He may adjourn his sale, sometimes for the benefit of the defendant, when he expects a better day or more bidders, and gives notice to those attending that the sale will be made at that future day. Sometimes, indeed, the sheriff may have so many goods to sell to satisfy the execution that he cannot make sale of all in one day; and shall he then be obliged to wait till another ten or forty days shall intervene? No; he shall continue the sale by adjournment till the whole be sold.
Verdict and judgment for plaintiff.