Berry v. Griffith , 2 H. & G. 337 ( 1828 )

Buchanan, Ch. J.

delivered the opinion of the court. This was an action of trespass for cutting down trees in a close, alleged to be the close of the appellant, who was the plaintiff below.

The appellant claims title to the land on which the trees were cut, under a devise from his father; and the defendant rests his defence upon a purchase of the same premises by himself and Henry B. Griffith, from the sheriff of Montgomery county, at a sale by auction, in virtue of a fieri facias regularly sued out of the Montgomery county court. And the s le question presented to us in argument is, whether the sale made by the sheriff of the land on which the trespass is supposed to have been committed was a valid sale?

To prove that the sale was irregular and void, the appellant offered in evidence the inventory and appraisement, in which the land upon which the fieri facias was levied, is described as “part of a tract of land called Charles and Benjamin, containing five hundred acres of land more or less,” valued at #6,000. The sheriff’s advertisement of sale, which is of “all the right, title, interest and estate, of the said Elisha D. Berry, of, in and to, part of a tract, of land called Charles and Benjamin, containing five hundred acres more or less,” both of them stating it to be taken by virtue of a writ of fieri facias at the suit of William Willson, and Anna Maria his wife. And also a paper, which it is admitted was prepared and filed by the sheriff as his return to the fieri facias, and in which the land sold is described as “part of a tract of land called Charles and Benjamin, lying on the north west side of the Baltimore road, containing two hundred and fifty acres more or less.’*' ¡And all of them describing it as the land of Elisha 2). Berry„ And the defendant produced a corrected return by the sheriff, of the fieri facias, on the return day of the writ. That correeted return is full and special, and sufficiently describes the land sold, and entirely supersedes the paper that was first prepared by the sheriff as his return; which paper, if admitted to be imperfect as a return, cannot avail the appellant, as it will rot be denied, that a sheriff has a right, in due time, to eor•ect his return to a fieri facias, so as to make it conform to ;he truth of the fact, whatever that may be, and to give it effect and legal operation; and indeed, it is his duty to do so,, lot only as respects himself, but all others concerned, and pur¡Lasers not less than others, who commit themselves to the acuracy and integrity of sheriffs.

In this ease it is not denied, that the correction was in time; mr is it contended, that the return, standing alone, is upon the ice of it defective, but it is supposed that there are discrepancies etween the return, the inventory and appraisement, and the dvertisement of sale, which vitiate the whole proceedings, and Rider the sale void. With respect to certainty in the descriplion of the property, we do not perceive the fatal discrepancies that are supposed to exist. The corrected return describes the land levied upon, as the property of Elisha D. Berry, to be “all that part of the tract of land called Charles and. Benjamin, which was devised to Elisha D. Berry by his father,” with a reference to the will, and states the amount, to which it was appraised, to be #6,000, referring also to the schedule or inventory. Between the description then of the land levied upon, as given in the return, and the inventory and appraisement, there is no discrepancy, but the land clearly appears to be identical. In the latter, it is described as part of a tract of land called Charles and Benjamin, the property of Elisha D. Berry, containing five hundred acres more or less, and appraised to #6,000. In the former, as all that part of the tract of land called Charles and Benjamin, belonging to Elisha D. Berry, which was devised to him by his father, stating the amount of the appraised value to be the same as that set out in the inventory and appraisement, and showing, by the reference to that paper, (which is made a part of the return,) the quantity of acres to be the same. The only difference being this, that the return professes to show in what manner Berry acquired title, by reference to his father’s will, which the inventory does not. But the two papers manifestly show the land devised to Berry by his father, and the land levied on to be the same; and the same may be said of the advertisement of sale, which is of all the.right, title, interest and estate, of Elisha D. Berry, of, in and to, part of a tract of land called Charles and Benjamin, containing five hundred acres more or less, taken by virtue of a writ of fieri facias, at the suit of William Willson and wife. This, paper does not, to be sure, set out the means by which Berry acquired title, but it desciibes the land seized under the fieri facias, as the property of Berry, by its name and contents, as it is described in the other two papers. And it is difficult to wink so hard, as not to see, that they all manifestly relate to the same land, and describe it with sufficient certainty. But it is not true, that lands taken in execution, must be described in the schedule and advertisement of sale, with technical minuteness. If it were so, it would perhaps be found that there are few titles in the state, acquired by purchase at sheriffs sales, that might not be shaken. The sheriff cannot sell what has not been levied upon, but a general description in the shedule and advertisement of sale is sufficient. The return should regularly, for the security of purchasers, describe the premises with precision; but it is enough if the description be such as that the property sold may bo clearly identified. In this case, the land sold was a part of the premises levied upon and advertised, and that part is described in the sheriff’s return, in a manner by which it may be sufficiently known and ascertained. But it is contended, that the sale was void, because a part only of the premises seized and advertised was sold, on the ground that the sheriff was not legally authorised to sell a part only, but was bound to sell the whole of the land levied upon. We cannot, however, assent to the proposition. Sheriffs, it is believed, are already sufficiently disposed to sell more than is necessary; and it would be pregnant with mischief to the community, if a sheriff, who lays an execution for $100, On a tract of land worth $10,000, should be held to be obliged to sell the entire tract, and could not sell such part as might be sufficient to discharge the debt. On the contrary, we think, that in such a case the sheriff is not only authorised to lay off and sell such a proportion of the land as may be found sufficient to satisfy the debt, but that he ought to do so, and not to sacrifice at auction more than may be found necessary. Or suppose a sheriff having taken in execution an entire tract of land, finds it will sell to a greater advantage if divided and sold in lots, than if sold altogether; and accordingly lays it off into lots, and sells them separately to different persons; would it, in such a cáse be said, that the sale of each lot would be void, because the sale of neither was a sale of the whole? And yet the doctrine contended for here, if maintained, would lead to that length.

We ean perceive nothing wrong in the sale and return in this case, and affirm the judgment.

JUDGMENT affirmed.