John S. Cushwa and others, vs. Isaac B. Cushwa and others, 5 Md. 55

Eccleston, J., delivered the opinion of this court. In November 1847, the appellants obtained a judgment against Benjamin Cushwa for $4689.86', debt, with interest thereon from' the 5th of April 1839. Shortly after the judgment Benjamin Cushwa died, and in 1848 a writ of scire facias was issued and served upon the appellees, as heirs and terre-tenants of the original defendant. On that scire facias nfat was entered in March 1849, and upon it a fieri facias issued in April 1851.

Under this writ the land, formerly held by Benjamin Cushwa, was sold t-o the appellants, and Elizabeth, the wife of David Brewer, for $2000. On motion this sale was set aside, and a new fieri facias issued, under which the same land was sold to John S. Cushwa and David Brewer, for $50. In November 1852, at the instance of the appellees, a rule to show cause why this second sale should not be set aside was laid. The reasons assigned for setting.aside the sale are: 1st. That the lands were sold at a grossly inadequate price. 2nd. That due and legal notice had not been given. 3rd.

That there was no competition at the sale, there being, no other bidders than the purchasers, who purchased at their first bid. An answer to the rule was put in by the appellants denying the reasons assigned.- It is admitted that the personal estate of Benjamin Cushwa had been fully administered,- and the proportion thereof applicable to this judgment had been paid, and that Benjamin had no other real estate than that sold under the execution. The lands included in the sale had been previously conveyed by Benjamin to John.

And there being no personal or real estate, other than the lands in controversy, to which the plaintiffs in the judgment could look for payment of the large amount conceded to be unpaid, although the sale was nominally for $50, in reality it was for a sum equal to the amount due on the judgment, so far as the purchasers were concerned. In addition to this, there was an ejectment suit then pending between these parlies, involving the title to the land. In view of these circumstances, we do not think the sale ought to have been set aside on account of inadequacy of price. The other reasons were not urged.

In regard to the want of notice there is no evidence to controvert the sheriff’s return, and no proof was offered in relation to the last reason assigned.

In the argument on behalf of the appellees it was said, the purchasers were contending in the ejectment that they, the appellees, had no title to or interest in the lands, and therefore the appellees now insist, that if they had none their interest in them could not be sold under a fieri facias; for the Iaw will not allow a plaintiff in a judgment to levy an execution upon the property of a party who is not a defendant in the judgment, and under such a levy sell the interest of the defendant, when in fact he has none.

But it is to be recollected that in this instance the defendants were returned under the scire facias, as heirs and terre-tenants of Benjamin Cushwa, in regard to the lands in dispute. If they were not such heirs and terre-tenants, they might have pleaded that to the scire facias, but they did not, and the fiat was rendered against them, as such heirs and terre-tenants. Now, when by virtue of an execution under that fial, the lands are sold, it is too late for the appellees to say they had no interest. Moreover, if they had no interest, $50 was not a very inadequate price to give for their title.

Believing the court below erred in setting aside the sale, we must reverse the order passed by them ori that subject. Order reversed.