Clarke v. Belmear , 1 G. & J. 443 ( 1829 )

Martin, J.

delivered the opinion of the Court.

After recapitulating the facts as set out in the commencement of the report of this case, the Judge proceeded to state, that from these proceedings Clarke has appealed and contends, 1st. That the writs of fieri facias and venditioni exponas and the returns made to them are void for uncertainty; and 2dly. If they are sufficient, Belmear was not entitled to the writ of habere facias possessionem under the act of 1825, as the lands were in execution prior to the passage of that act.

The description of the property contained in the schedule returned by the sheriff to the fieri facias was, “part of Burgess’ Delight, part of Clarke’s Fancy, and part of Hickory Thicket, supposed to contain 275 acres.” . Did the case rest upon this return alone, we should not consider it open for discussion. It has-been solemnly determined by many adjudications bf this court, that such a return is not sufficient, that it would be quashed on motion, and. would be unavailable in an ejectment to prove title in the plaintiff. Williamson vs. Perkins, 1 Harr. and Johns. 449. Hammond vs. Norris, 2 Harr. and Johns. 147. Fitzhugh vs. Hellen, 3 Harr. and Johns. 206. Fenwick vs. Floyd, 1 Harr. and Gill, 172. Thomas vs. Turvey, 2 Harr. and Gill, 435.

But it does not rest upon thjs return alone; the sheriff having returned he hád not sold the lands under the fieri facias for want of time,- a venditioni exponas was issued, commanding him to sell the-lands before taken by him, under the fieri facias,—to this venditioni he makes a special return, stating in substance, that.he had sold the lands before taken in execution, under the fieri facias, gives a description of those lands by metes and bounds, and that Francis Belmear became the purchaser for $500, which sum had been paid by him. The question then arises, whether the purchaser is not entitled to the benefit of both those returns to shew the description of the lands he had purchased under.them? ' This was a judicial sale, and the purchaser claims title under the whole proceedings, embracing both writs and returns. The fieri facias is the .effective writ in these cases, it not only authorises the sheriff to seize, but to sell, very different is the office of a venditioni exponas. That confers no new power to the sheriff; it does not authorise him to do any act, that he might not have done under the fieri facias. It is only a mandatory writ, and directs him to carry the fieri facias into effect, by selling the lands taken in execution under it, and when the lands are' sold, the return to the venditioni relates to, and in legal effect-, becomes part of the return to the fieri facias. ‘ Suppose in this case the sheriff had sold the lands under the fieri facias without the aid of a venditioni exponas, and. had returned that he had sold the lands in the schedule mentioned, which lands were contained within certain metes and bounds set out in the return to the sale, can there be a doubt that the return thus correctly describing the lands would not be sufficient, to give certainty to those mentioned in the schedule ? If then the description in the schedule might be corrected by the return to the sale, if made immediately under the fieri facias, it cannot be perceived why it should not be received for that purpose, when made to a venditioni exponas, whose only office is auxiliary to the fieri facias and to carry it into effect. The purchaser claims title under the united effect, of both those writs, and if certainty is the object to be attained, he has a right to resort to the whole judicial proceedings, under which his title accrued to ascertain it.

It has been contended that the description of the lands in the return to the venditioni exponas is not sufficiently certain, to ascertain the location of them. That they might have been described with more accuracy cannot be doubted, but we think there is sufficient certainty, to enable the party to make a true location of them.

The second objection to the proceedings of the court, that these lands were taken in execution prior to the act of 1825, eh. 103, cannot avail the appellant. The right of the party to obtain a writ of habere facias possessionem under that act, does not relate to the time the execution was issued, but to the time when the lands were sold, and it appears from the record, the lands in this case were sold on the 17th day of June, 1826, long after the passage of the act.

JUDGMENT AFFIRMED.