Waters v. Peach , 3 G. & J. 408 ( 1831 )

Archer, J.,

delivered the opinion of the court.

Entertaining the views which, we do, in relation to the time at which, the motion to quash the venditioni expóñas, and sheriff’s return has been made, we do not deem it necessary to express any opinion in relation to the various defects which have been insisted to exist, in the fieri facias, venditioni, alias venditioni, and the sheriff’s returns thereto. Had the defendant appeared at the term to which the alias writ of venditioni exponas was returnable, and when the proceedings were in fieri, and made his motion to quash them, the regularity and legality of the proceedings would have properly come up for adjudication. But after the term has passed by, when the parties have no day in court, and the purchaser has paid the purchase money, which has actually passed to the credit of the judgment against the defendant, we apprehend it is too late, for the defendant, in this summary way, to make his motion to set aside the proceedings as irregular, and that too, without a rule to show cause, either against the plaintiff, or the purchaser, why the proceedings should not be quashed. The authorities cited from 4 Harr. and McHen. 291. Williamson vs. Perkins, 1 Harr. and Johns. 449, and Harden and Carson vs. Moores, 7 Ib. 4, do not appear to establish the positions for which they were cited. The motions to quash, were in all those cases made, while the proceedings were pending in court, or at the term to which they were returnable. We have been referred to 2 Saund. 69, note 3, to show, that if an inquisition upon an elegit be void for uncertainty, or because more than a moiety of the lands have been delivered, or for any other defect appearing on the faee of it, as the plaintiff can never obtain possession of the lands under it, the court upon a scire facias will order the writ to be vacated : and it has been emphatically asked, if the proceedings may after the term, be vacated upon a scire facias; why may they not upon motion ? The answer is obvious; because in the latter case, after the term, the parties have no day in court; but upon the former, a day is given.

But why should the court be called upon at this time, to set aside these proceedings ? The purchaser, who is the only person likely to be affected by their illegality, if" in fact they be so, (and whether they be, or be not so¿ we do not mean to intimate any opinion,) is willing to stand by the proceedings, and to rest his title upon them. There exists no intimation, that by the course adopted by the sheriff in the execution of the writs, any injustice has been done to the defendant. There is certainly no evidence to that effect, and we conceive that such efforts to harrass the purchaser, do not merit the encouragement of the court.

judgment affirmed.