Opinion
Fall Sessions, 1842.
Cullen for the rule.
Wootten, contra.
FI. FA. levied on land. Inquiry held and sufficient.
The inquisitors valued the land at $40 per year beyond all reprizes, and found it sufficient to pay this execution, and all judgments against it at the time of inquisition.
Cullen, for plaintiff, now obtained a rule to show cause why the inquisition should not be set aside, founded on an affidavit that there were three judgments entered on the same day of the inquisition, which were not considered, and that the inquisitors valued the land too high.
Wootten now showed for cause — 1st. That the three judgments entered, on the day of the inquisition, were entered after the inquisition held. 2d. That the plaintiff had no right to controvert here the finding of the inquisition; and 3d. That the land was worth $40 per year, which is sufficient to pay all the liens that were against it at the time the inquisition was held.
The Court. — The act authorizing the sale of land is in derogation of the common law, and must be strictly followed. It authorizes the sale of land only where two inquisitors have found that it will not be sufficient in seven years to pay the debt. The judgment of the inquisitors on this subject is conclusive, unless it be impeached on the ground of fraud or irregularity in holding the inquisition. Where the finding is attacked upon legal grounds, inquiry as to the value is often brought up incidentally; but by itself this is not sufficient to authorize the court to set aside the inquisition. If it were so, it would be substituting the judgment of this court for that of the inquisitors in this matter, as to which the law has made them the judges. On the other ground it appears that the judgments were in fact entered after the inquisition found, though on the same day. If this would be sufficient to set aside the inquisition, it would equally be so if judgments were entered at any time between the inquisition and return.
Rule discharged.