#### Den *ex*dem. *of*James Seawell *v.*Bank of Cape Fear.

Sealing is necessary to the validity of all writs, except those issuing to the county of the court where they are returnable ; and a sheriff by acting under an unsealed writ, does not thereby render it valid.

jJThe cases of *The Governor*v. *Me lia-,*( 3 *Hawks*226) and *Barden*v. *McKinnle,*1,4 *Id.*229) approved.

Ejectment, tried on the spring circuit of 1830, before his Honor, Judge Norwood, at Cumberland.

The plaintiff claimed title under a sheriff’s deed for the premises in dispute, dated June 2d, 1823, and reciting “ an execution” which issued from the County Court of New Hanover, against *Peter Perry*and *Dominie Ca-*aauajfor g662 90, and produced the record of a judgment against *Perry*and *Gaaaux*entered up in New Hanover County Court, at August term, 1819, and *aJi fa.*thére-on, tested the 2d Monday of August, 1820, and returnable the 2d Monday of November following, which was returned levied upon the land in question, on the 11th of November, 1820, as the property of *Perry,*subject to sundry prior levies,made under executions issuing from Cumberland County and Superior Courts, at the instance of the defendants. The plaintiff also produced a *vemicioni exponas*tested the 2d Monday of November, 1820, and *280returnable the 2d Monday of February, 1821, which recited the former levy, and upon which the sheriff returned that he had on the 9th of February, 1821, sol'd the land levied on under *thefi.fa.*to the lessor of the plaintiff.

The defendants objected that these writs did not confer upon the sheriff a power of sale ; and to support the objection, produced the original *venditioni exponas,*and proved that it had never been sealed with the seal of New Hanover County Court, and urged 1st, that for this reason the writ, was a nullity, and 2d, that as the sale took place after the return of the *ft-fa.*it was made without any .authority in the sheriff, and consequently was inoperative. But his Honor overruled the objection, thinking that although the writ was not legally authenticated, yet if the sheriff thought proper to act under and recognize it, it warranted his subsequent sale.

The plaintiff also offered in evidence several judgments and executions in favor of the defendants against *Perry,*and proved that they were in the sheriff’s hands at the time of the sale; and that the proceeds of the sale had been applied to their satisfaction ; but it appeared that the .agent of the defendants had directed the sheriff nofc to sell under these writs, although he had not withdrawn them, nor paid or tendered the sheriff bis fees. ■ ,

The defendants claimed title from *Perry*under an assignment of a mortgage, prior in time to the lien of the execution under which the lessor of the plaintiff purchased. This was impeached as fraudulent ^ between the mortgagor and *Perry,*and a verdict *being returned*for the plaintiff, the defendant appealed.

*■Hogg,*for the defendant, argued

1st. That a seal was absolutely necessary to every writ, which issued to a sheriff of a county other than that in which the court was held, ( *Act of*1797, *Rev. c.*474, *s. 5. Governor*v. *McRae,*3 *Hawks*226 ).

2d. He contended, that the rule laid down by the judge in the court below, in effect, gave the sheriff the power of deciding what was valid process and what was not; and of course, enabled him to determine the preference .to be given to one of two *executions;*whereas, his office was strictly executive.

*2813d. That if tbe writ of *venditioni exponas*Vas inoperative for want of a seal, the prior/?, *fa.*which had been returned at the time of the sale did not authorize it. *(Bar-den*v. *McICinnie,*4 *Hatchs*279. *Jlmyett*v. *Backhouse,*3 *Mur.*63. *Ellar*v. *May,*2 *Hawks*568).

*Gaston*and *Badger,*for the plaintiff, argued

1st. That the want of a seal did not invalidate the *ven-ditioni exponas.*If not scaled, the sheriff was excused from acting *;*hut if he chose to act, a purchaser was not affected by the want of form. ( 1 *Jirchb: Pr.*193, 324‘, *Gill). Law of Evid.*40. *Bull.*JV‘. *P.*234i *Peake’s Evi.*SO. *Jackson*v. *Pratt,*)0 *Johns. Pep.*387. *Crcsson*v. *Stout, 17 Id.*1! 6).

2d. That a sheriff may sell land under a *fi.fa.*after its return, and without a *venditioni exponas ;*and they commented upon the case of *Barden*v. *McKuinic,*and endeavored to show that it stood upon its peculiar circumstances, and that it was inconsistent with the cases of fFhea-*ioiiv. Saxton,*(4 *Wheat.*503). *Toomer*v. *Purkey,*( l *So. Car. Cons. Eep.*323). ' *Tayloe*v. *Gaskins, (ante*1 *vol.*295.)

3d. That the plaintiff’s title was valid under the execution in favor of the defendants, and cited *Haywood*v. *Hildreth,*(9 *Mass. Rep.*393). *Prescott*v. *Wright,*(6 *Id.*20).

HeN»ersoN, Chief-Justice.

A writ issued to another’ eounty must bo under the seal of tiie court from which it issues. • Without a seal it confers no power on the sheriff; and his acting under it cannot'give it validity. This has heretofore been ruled-in this court, in the case of *The Governor*v. *McRae.*The act of 1797, *'(.Rev. c.-*474, s. 5,) dispensing with the sealing of process in the cases mentioned in it, operates only in those cases. And it is a sufficient answer to say, that this is not one off them, and therefore must he ■ governed by the general rule. But if that act has any effect in this case,- it: is to-shew, that a seal is here necessary. For ifby.thegeneral rule it was not, why make the exception?

It is next contended* that the levy under *the^erifacias.*issued from N ew-Hanov.er County Court, and. returned to *282the succeeding session of that court, levied on the lot in dispute, gave the power to *sell;*and that altho’ this case may he embraced by the reasoning of the court in delivering the opinion in the case of *Barden*v. *McKinnie,*yet the facts are very different. There the indorsement of the levy was not made until long after the return of the *f-fa,*the sale was not made until more than two years after its return day ; and in the mean time the defendant in the execution had died. Here, the levy was indorsed at the proper time, the sale made shortly after, and in the life time of all the parties. It -is admitted, that *the*case referred to is a much stronger one than this. But the principle is the same, to-wit, that a sale of lands under *a.ft. fa.*is in virtue of *& power,*and not of a *property*in the thing .sold. The latter is the case, as regards goods. By the seizure, the sheriff acquires a qualified property in them, and may maintain an action founded on that right of property, qualified to be sure, but still it is a right of property. He stands charged to the plain-tiffin *the Ji.'fa.*for their value; and *the*debtor is discharged to the same amount. It is in virtue of this property, that he makes the sale ; mid he needs not a *ven-ditioni exponas*to confer it. He had it before. A *ven-ditioni exponas*only puts him in contempt for not selling. But in regard to a levy on lands, it is far otherwise. The sheriff makes no *seizure ; is not liable*for the value *;*the debtor is not *discharged*to that or any amount; the sheriff acquires no possession. He only sells the defendant’s estate in.the lands. He does not deliver posses- . sion to the purchaser as he does in the sale of goods, but only clothes him with the defendant’s estate, and leaves him to acquire possession as he can. This shows very clearly, that the sheriff sells by-virtue of a power, and not by virtue of a property of any kind. • When therefore that which gives the power is withdrawn, the power ceases. As a *venditioni eoeponas*can give no power to. sell, it is argued that *ex necessitate*the power given by the *fi. fa*must remain. The argument would prove much, were it true. For altho’ it is admitted, that *a venditioni eoeponas*confers no power to sell in tine case, of a. chattel *283levied on under *nfi.fa.*because thepower existed before, and therefore could not be conferred again, yet where the power did not exist before, that reason fails ; and if not conferred by the *venditioni exponas,*it docs not exist. The reason *ex necessitate*is therefore turned against the defendant. In these cases we is are considered, and must consider that a *venditioni exponas,*or order of sale by whatever name it be called, changes its character from that which it bears where there has been a levy on goods. There it confers no power to sell, because the power existed before. But in the case of a levy on lands, it confers the power of sale, for the very contrary reason. Where goods are levied on under an attachment, and they arc afterwards ordered to be sold ; or where lands are levied on by a constable, and returned to court, and ordered to be sold, the order of sale, whether it be called pimply by that name, or *dignified*with the name of.rere-*ditioni exponas,*is the writ which gives the sheriff power to sell; The very same reasoning is applicable to an order to the sheriff to proceed to sell land levied on by a *fi. fa.*which has been returned, and the power of acting under it thereby withdrawn or expired. So also where an heir is sued on his ancestor’s bond, and he confesses and sets out assets, and the plaintiff accepts them, a *venditioni expones*or order to sell them issues. And certainly in this case no power existed before, and independently of the writ.'

*282A *fi.*fa. vests a property in goods seized under it in the sheriff, but as to land it confers upon him only a power to sell.

Goods may therefore b e sold bythesheriffun-der a previous levy without a vendition!; but a sale of land with-outsuch authority is inoperative.

*283If a sheriff has several writs against the same defendant and does not sell under one of them, that writ cannot aid the title of a purchaser under the others, although the money arising from the sale is applied to its satisfaction.

As to the sheriff’s having in his hands writs of *ft. fit.*against the same defendant, at the instance of the Cape Fear Bank, that gave the sheriff no power to sell. For be was directed by the agent of the Cape Fear Bank not to sell under them. And this order given by parol without withdrawing the writ, was good; at any rate the •sheriff obeyed the order and did not act under the writs. And this is not like a case where a person has various powers to,do an act, and does it, a misrecital of the power afterwards, under which power lie could not rightfully do it, will not vitiate the act. He *did*it under *all;*and if *either*was good, the act is effectualj and his mis-yecital shall not prejudice. He clid uot act nor profess *284to act under the bank executions. The directions of the agCiv(. wcre good without paying the fees ; and especially i,C(jU^eg{.e{| jn by the sheriff.

riínevlesa/fü" on land and goes °waL°rCmust be directed to lus successor.

jPej- Hendeb-son, C. Justice. Where the sheriff has acted under an unsealed writ, the court . from which it issued, may after its return render it valid by affixing- tlie seal.

y/b cannot examine into the grounds of the decisions in oar sister states, for want of their Laws in regard to these writs *of fi. fa.*There must he something in them to warrant the decisions, or wc .misunderstand the common law.

It' is asked, if the sheriff made a levy on lands, and went out of office, is he to .sell ? I imagine not. Indeed I say not. And yet if the plaintiff’s argument is sound, he must. And if so;. all sales made by succeeding she-r*®3» where their predecessors had made a levy on lands, would be sot asida. For they have uniformly been made ^ p10 successors-, under writs *oí venditioni exponas.*Nor will the application of the surplus in the sheriff’s hands (after applying' what he chose to the *venditioni*exponas) to the bank executions, alter the case ,* that is, make it a sale under the bank executions. This is only matter of evidence, and is entirely contra dieted by *the full*proof to the contrary. As this case is to go back for a new trial, I imagine that it is within the power of New Hanover County Court to affix their seal to the *venditioni exponas*now, if it was omitted by mistake; that is, if it was intended, the *venditioni exponas*should be a genuine writ. I make this suggestion, that the parties may meet on equal terms at the next trial.

Per Curiam. — Judgment reversed.