#### TALLIAFERRO v. PORTER’S ADMINISTRATORS.

General Court — Supreme Court — records—sci, fa. — ‘satisfaction—authority.

The Supreme Court of Ohio succeeded to the jurisdiction of the General Court of the Northwestern Territory.

The records of the General Court are in the clerk’s office of the Supreme Court in Hamilton county.

Where execution had issued from the General Court returnable to Cincinnati in March, 1803, on which levy was made on land in Ross county, which remained unsold, and *thevendiy*after the state government was organized, was sued out from the Supreme Court in Ross county, the vendi is void.

A scire facias is the proper writ to vacate a satisfaction enteied by *mistake*or accident, on the return of a void writ; though relief in such cases may be had on motion.

After ten years such writ will not issue without affidavit, that the debt remains unpaid, and judgment will not be entered until after personal service upon the defendant *if he is in the county*— after twenty years the writ issues in like manner, and judgment is only entered after personal service of the writ, without regard to the residence of the defendant.

When the moving party is the purchaser at sheriif’s sale, claiming to act as attorney in fact for the plaintiff in execution, who has had the benefit of the sale to be vacated, it excites suspicion, and his authority must be produced.

Duncan M’Arthur filed an affidavit, in which he describes himself agent for the administrator with the will annexed, of Talliaferro, who is deceased, alleging that a bond dated the 8th of May, 1797, was given by Porter to Talliaferro, in the penal sum of *£560,*conditioned for the payment of £280, Kentucky currency, clear of interest, on or before the 25th of December, 1800, being the last of four bonds for a tract of fourteen hundred acres of land, as security for the payment of which the land was held. That Talliaferro, in October, 1802, recovered a judgment in debt on *said*bond in the *General Court,*on which the following executions and returns were had. The affidavit then recites at length,

1. The record of a judgment recovered by Talliaferro against Porter, in October, 1802, by nil dicit for-debt,-damages *611and costs, in the General Court of the Northwestern Territory, on a bond dated the 8th of May, 1797, for £560, and exhibits a record of a like recovery on abond dated in 1799.

2. That a *Ji. fa. et lev. fa.*issued on said judgment at the term of its rendition to the sheriff of Ross, returnable to the next term of the court in Hamilton, in March, 1803, which was returned to the clerk of the Supreme Court of the *State of*Ohio, in Ross county, endorsed nulla bona, and levied on four hundred and fifty-two acres of land, condemned for sale by a jury according to law, but unsold for want of bidders.

3. A venditioni exponas, was issued on the 15th of November, 1803, by the clerk of the Supreme Court of Ross.county, on which the sheriff returned that on the 17th of December, 1803, he sold the land levied to D. McArthur for $1521, and had the money in court." The amount of money was more than sufficient to satisfy the judgment.

4. That Porter died before the execution was issued and administration granted.

5. That after McArthur’s purchase he obtained a deed from the sheriff and entered into possession of the land, but the heir of Porter brought ejectment in the Circuit Court of the United States, and recovered the land, that court adjudging the levy, sale, and deed to McArthur void.

6. That the heir of Porter conveyed the land to W. S. Murphy,' and has since died.

7. That the administrator of Porter died without having paid Talliaferro, and without assets.

8. That the record of the judgment in the General Court remains among the records of that court in Hamilton county, never having been certified to Ross, where the record ought to be.

9. That the affiant is advised by counsel, that the judgment, by reason of said proceedings, is still in force and effect in law, in nowise satisfied or paid, and that execution thereof belongs to the administrator of Talliaferro, who died a citizen of Kentucky where administration was granted, he never having been a citizen of Ohio.

Murphy was served with a copy of the affidavit and notified that this Court would be moved, to order the record to be certified and removed to Ross county, and to give the administrator of Talliaferro leave to issue a scire facias against the terre tenants of Porter, to vacate the satisfaction, revive the judgment, and grant execution against the lands.

*T. Scott,*for McArthur,

contended,

*6121. That the bond which obliged the obligor and his *heirs,*in default of personalty, bound the lands which were cast upon the heir by descent.

2. That there is no personalty in this case, and the sale to McArthur was void, and vested in him no title: (1 *O. R.*99, 522; 2 O. *R.*133, 293; 3 *O. R.*579; 4 O. *R.*481, 493.)

3. That McArthur having paid his money on a purchase under a void execution, paid it for a consideration which has failed, and has. right to recover it back from Talliaferro or the sheriff in whosesor ever hands it may be, in an action for money had and received.

4. That inasmuch as no satisfaction of the judgment has in fact been made, the sheriff’s return ought to bo vacated: (2 *Saund. R.*69, *c.n.l,*8 — 70 *c.n.*6, 3.)

5. A scire facias is the proper remedy to vacate the satisfaction of a judgment: (2 *Saund. R.*71, ra. *4,*215, *n.*2; 3 *Saund. R.*444, *n.*2; 4 *Day R.*222; 1 *Root R.*453; 1 *O. R.*468.)

6. As the judgment is of more than twenty years standing it is necessary to obtain a rule for the writ of scire facias, on an affidavit that the debt is unsatisfied: *(Tidd’s Pr.*404, *n.*9, *and*1031; 2 *Saund. R.*72, *o. n.*2, 94, *n. 1,*260.)

7. The writ of scire facias must issue in the court where the record is; *(Tidd’s Pr.*1006; *Com. Dig. PL*306; 2 *Saund. R.*2.16, 72, *c. n.*4.)

8. The record should be certified to Ross county, because the venue is laid there: *(Consti. O.*3 *art.*§ 1, 2, 3, 5, 10, 11; *Schedule*1; Acte *of*1788, *ch.*4, *p.*15; *Acts of*1790, *ch.*14, 15, *p.*44,45; *Acts of 1795,p.*44,45; *Acts of*1800, *ch.*24, *p.*94.)

Wright, J.

The ordinance of 1787, provided for the appointment of judges to form a court with common law jurisdiction: (1 *Ch. O. L.*67.) The governor and judges of the Northwestern Territory by act of August, 1788, denominated this *a general court,*and provided for its sittings: (1 *Ch. O. L.*97.) The act of August, 1795, provided for holding a term of this court at Marietta and one at Cincinnati, in each year, for nisi prius courts for *the*trial of issues in fact,and for writs returnable to the next term after their date: (1 Ch. *O. L.*149.) The act of 1800, provides for transmitting the records with the postea endorsed and other proceedings necessary for the rendition of judgments to the *General Court-.*(1 *Ch. O. L.*359.) The *state government*was organized in 1802. The act of the state legislature of April, 1803, abolished the General Court, vested a portion of its jurisdiction in the Supreme Court, and transferred to it the judgments unsatisfied in the General Court. By virtue of this. *613transfer the records remain in the Supreme Court of Hamilton county: (1 *Ch. O.L.*359; 1 *O. R.*317; 3 *O. R.*483.)

The execution on Talliaferro’s judgment was issued during the territorial government, in October, 1802, and made returnable to the General Court at Cincinnati in March, 1803. The state courts were not organized until a month after the execution should have been returned — when the levy was made does not appear, as the return is without date. The 15th of November, 1803, the vendi on which Porter’s property was sold to McArthur, was issued by the clerk of the Supreme Court of Ross county; it commanded the sheriff to sell the land which he had *1 certified to the judges of the Supreme Court of the county of*Ross, *remains unsold.’’*It does not appear that the record was ever certified to Ross, or even that the fi. fa. was filed there, though probably it was. We think with the Circuit Court the writ void.

A scire facias is the proper writ to vacate the satisfaction of a judgment, or an endorsement on an execution, by *mistake*or accident: (1 *Root R.*454.) Remedy in such cases, and in other cases of void process may be had by motion in court, as where a *ca. sa.*was served after the return day, or, where the writ was issued against a dead man, or after a previous execution and levy undisposed of: (4 *Day R.*222; 1 *O. R.*467.) It is also the proper writ to revive a judgment against representatives. But after ten years the writ does not *issue*without affidavit of the applicant, that the debt is unpaid, and judgment is refused without *personal*service, if the defendant *is in the county.*After twenty years,the writ issues in like manner, but judgment is refused unless upon personal service upon the defendant, let him reside where he may.

Is the case before us a proper case for the writ ? The *fi. fa.*on which Porter’s land was taken and returned unsold appears to us *valid.*The *vendi*as a writ was *void*— yet, as its object was to compel a sale of the land, and as a legal sale could be made without such a writ by the officer, it is not perceived how the declaring an unnecessary and perhaps useless writ void, can affect a title acquired under a valid sale. If, then, the sale was by the officer making the levy, the sale might be good though the *vendi*was void — but that it was so sold, we are not advised. The case in 5 *Cowen R.*280, vacated the return of a sale of goods, after the value of them had been recovered of the sheriff and the plaintiff, by the owner of the goods who was a stranger to the execution: but the case in the same book, p. 58, decides that where land had been sold to the plaintiff in execu*614tion and the money paid, the return will not be vacated, but the party will be left to his other remedies if he have any.

The affidavit in this case describes a judgment on a bond dated two years before that described in the record exhibited. But whether that fact could influence the decision or not, is not perhaps material. No satisfaction on the judgment has been in fact entered. Satisfaction is claimed to result from a *void sale.*A proceeding . upon a *void writ*is as no proceeding, and can affect no right. But the application comes in a very questionable shape. It is by the purchaser at the sheriff’s sale, claiming to act as *agent*of the plaintiff’s administrator to vacate the sale and return, and open the door for repaying the purchase money, which has gone to the use of the principal. It is singular, that the administrator of Porter should employ a creditor of the estate to compel him to repay money improperly withheld. A party in a suit employ his adversary to conduct the suit. The movement looks suspicious. If the plaintiff had not got his money, and the return prevented him from getting new process, his movements might be intelligible. *As it appears to*us, we should not allow any steps to be taken by the purchaser in the name of the plaintiff without undoubted authority, if the right were manifest. The ease neither shows any right in McArthur' to proceed for himself nor *authority*to act for Taliaferro’s administrator. Motion denied.