Mitchell v. St. Maxent's Lessee
ERROR to the District Court of the Northern District of Florida. The case was thus:
On a proceeding on foreign attachment, judgment had been obtained in Florida, November 12th, 1825, against St. Maxent, a non-resident, but who owned certain lands in Escambia County there. St. Maxent died on the 25th day of November, 1825. On the 26th day of November a fieri facias was issued. The sheriff returned it December 1st, 1825, 'levied on the land' in question. Then followed a venditioni exponas, but all proceedings were stayed by injunction. Then, on the 21st of December, 1826, a writ of fieri facias against the said St. Maxent was issued, directed to the marshal of the district, and under this the land was sold and conveyed to J. K. Mitchell, or to persons from whom he derived title. The heir of St. Maxent having brought ejectment against Mitchell, the court, on the above state of facts, gave judgment for the heir.
In this court several questions were raised, among them, whether the sale to Mitchell, under the circumstances above stated, was valid.
Mr. Reverdy Johnson, for Mitchell, plaintiff in error:
At common law, if the execution be tested in the lifetime, it may be taken out and executed after death, for the execution related to the judgment, and might be tested immediately after it was rendered.
The doctrine of relation is carried still further; for if defendant die in vacation, judgment might still be entered after his death, and execution issued as of the preceding term.
This rule was limited by the statute of 29 Car. II, to the parties themselves, and bon a fide purchasers were protected from its operation.
In the eye of the law, therefore, it is the judgment which conclusively settles the rights of the parties on the day of its rendition, and a fiction is resorted to, to prevent a subsequent disability from interfering with its enforcement.
To the like effect is the act of 27th June, 1823, of the Legislative Council, Territory of Florida:  'The service of attachment on lands, &c., shall bind the property attached, and a judgment obtained therein shall have relation to the time of the service of attachment, and the plaintiff shall have priority of payment out of the property attached, except as to valid subsisting liens,' &c.
In this case the plaintiff in attachment had a right to an execution, tested the day after the judgment, and it is clear that if it had been so tested, the death could not have vitiated it.
The parties, therefore, have nothing to complain of, and if this irregularity could be taken advantage of at all, as against a bon a fide purchaser at a judicial sale, it must be by a direct proceeding, and not collaterally.
Voorhees v. Jackson,  is in many respects parallel to this. The plaintiff in ejectment relied upon his purchase under an attachment suit, whcih was resisted on the ground that none of the prerequisites required by stature to vest the jurisdiction had been complied with, and defendant had never appeared. The court held, that while the judgment remained in force it was itself evidence of the right to the thing adjudged, and that errors, however apparent, can only be examined by the appellate power. That it would be a well-merited reproach to jurisprudence if an innocent purchaser, who had paid his money on the faith of an order of the court, should not have the same protection under an erroneous proceeding as the party who derived the benefit accruing from it. The purchaser under judicial proceedings pays the plaintiff his demand on the property sold; to the extent of this, he discharges the defendant from his adjudged obligation.
The land lying in Florida was under its sovereignty and jurisdiction, without regard to the citizenship of the owner, and the jurisdiction of its courts was ample.
The proceeding was by attachment, and by its levy the plaintiff acquired a right in the specific property consummated by the judgment. It thus became sequestered in the hands of the law, and was held for his benefit as fully as if it had been levied on by a fi. fa. The levy of a writ, or a levy of a fi. fa., stand under the same sanctions. Both are solemn judicial orders, executed by the officer of the law, under his official responsibilities; and if this be true, the case of Doe v. Taylor  is conclusive of the question. On the objection to the title in ejectment, that the venditioni exponas under which the land was sold was tested subsequent to the death, the court held, that as the judgment operated as a lien on the land, and a prior execution attached 'specifically upon the subject of its operation,' that 'the rights of the parties to the subject-matter were determined, and all controversy closed. The law had taken the subject entirely to itself, to be applied by its own authority and its own rules.'
Here the party has his levy and a judgment, which the court in this case regarded as conclusive, and closing all controversy. He may have issued a mere 'venditioni;' all he wanted was an order of sale. That he sued out a fi. fa., instead of this, cannot vary the rights of the parties, which were fixed by the levy and judgment. 
An attachment is a proceeding in rem. Notice is served upon the thing itself. This is necessarily constructive notice to all who have any interest, or can assert any title. Every such person is considered as a party to the proceeding, and the suit does not abate by death. As soon as such process is commenced, and the arrest of the property is made, it is in the custody of the law. For it is a general rule in proceeding in rem, that the custody of the thing in controversy belongs to the court in which the suit is pending. 
The judgment of a competent court, proceeding in rem, is conclusive with respect to the thing itself, and operates as an absolute change of property; and no court of co-ordinate jurisdiction can examine into it. If an erroneous judgment binds the property on which it acts, it will not bind the less because its error is apparent. Of this error advantage can only be taken in a court capable of correcting it. 
In Thompson v. Tolmie,  the language of the court was, 'When there is a fair sale, and the decree executed by a conveyance, the purchaser will not be bound to look beyond the decree, if the facts necessary to give jurisdiction appear upon the record.'
Upon these settled principles, this court held, in the case of Whiting v. Bank of the United States,  that the death of the mortgagor, after the decree of foreclosure and sale, but before the sale was made, constituted no ground for a bill of review.
The case now before the court appeals more strongly to its sense of justice. There, the application was to a court of equity, which, in affording relief, always compels the party to do equity. Here, there is an action at common law, where, if the party succeed, he recovers the land while retaining the purchase-money for which it was sold.
Messrs. Carlisle and McPherson, contra:
'That no individual or public officer can sell and convey a good title to the land of another, unless authorized to do so by express law, is one of those self-evident propositions,' said Marshall, C. J., in Thatcher v. Powell,  'to which the mind assents without hesitation, and that the person invested with such a power must pursue with precision the course prescribed by law or his act is invalid, is a principle which has been repeatedly recognized in this court.' St. Maxent, the defendant in the attachment, having died on the 25th of November, the writ of fieri facias, issued and tested on the 21st of December following, without any scire facias against his heirs or terre tenants, was necessarily void.  This being a principle of the common law, was introduced into Florida by the act of the Legislative Council, passed June 29, 1823, § 1. 
Mr. Justice DAVIS delivered the opinion of the court.
^1 § 6 Pamphlet Acts, 39. Mr. McPherson, of opposite counsel, remarked that this provision had been repealed; referring to acts of the Territory of Florida, 1824, p. 195.
^2 10 Peters, 449.
^3 13 Howard, 293.
^4 Randolph v. Carleton, 8 Alabama, 616; Garey v. Hines, Id. 839.
^5 Burke v. Trewit, 1 Mason, 100.
^6 Williams v. Amroyd, 7 Cranch, 423; Elliot v. Pearsal, 1 Peters, 340.
^7 2 Peters, 169.
^8 13 Id. 13.
^9 6 Wheaton, 125.
^10 Erwin's Lessee v. Dundas, 4 Howard, 58; Woodcock v. Bennett, 1 Cowan, 738.
^11 Acts, &c., p. 136.