Fowble v. Rayberg ( 1829 )

Opinion of the court, by

Judge Hitchcock:

Previous to the act of 1824, “defining the duties of sheriff's and coroners in certain cases,” it was a point frequently mooted among the members of the bar in this state, whether a sheriff, aftor the expiration of his office, could do any official act; although I am not aware that the question was ever submitted to or decided by any of our courts. 6 Bac. 161. In England it seems to have beer' considered that a sheriff, having levied upon goods and going out of office, might proceed to sell under a vendi.; and if the sheriff returned on thefi.fa. that he had seized goods of the value of the-debt, and actually paid part of the debt after his term of office expires, he might sell without a vendi. If he neglected, a distringasissued to compel him to sell and bring in' the money, or to compel him to sell and deliver the money to the new sheriff to bring into' court.

But although a vendi. might issue to a sheriff after he was out. of office, the ft. fa. having been levied by him while in office, still I apprehend this practice was not uniform. By section 9 of the' statute of 3d George I., chap. 15, provision is made for settling the fees or poundage between a preceding and subsequent sheriff, where the ft. fa. is levied by the one *and the vendi. issued by the other. 6 Bac. 161. It is true this refers to process out of the exchequer.

As lands in England are not subject to sale on execution, we cannot expect to find in the reports of that country any decided case-precis ely in point, although there may be those which are somewhat analogous. Thero is a diffei’ence as to the effects of a levy upon goods and upon lands. Goods when levied upon are taken, or' ought to be taken into the possession of the sheriff, and so far become his property that he may maintain an action if they are-taken from him. If of sufficient value to satisfy the debt, and, if lost through his carelessness, he will be liable to the creditor, and may be made to pay the debt. The land, however, remains in tha possession of the defendant, and in that possession he can not bo disturbed until it is sold. Nor could the officer be called upon to pay the debt until that event had taken place. For these reasons there would seem to be more propriety in directing the vendi. to the new sheriff where th & ft. fa. was levied upon lands than where it was levied upon goods. The goods might be retained, or may have been lost by the old sheriff, and thus never have come to the possession of the new one, while the lands would remain in statu quo. Still, if the execution be “ an entire ” thing, and that it is we have-no disposition now to controvert, we can see no serious objection to adopting the rule that “he who begins shall end it,” as well where lands as whore goods are to be sold. At any rate, we must nay that the English authorities, so far as they are analogous, seem to favor this practice. Such practice prevails in New York. In that state it has been decided that a deputy sheriff may completo a sale and make a deed after the principal is out of office, provided the levy was made before. 3 Com. 89.

In this state there was no express statutory provision upon the subject until 1824. We have endeavored to ascertain the practice before that time, for after all I can not but consider it a mere question of practice. So far as respects the interests of the judgment debtor, if his property must be sold on execution to satisfy the judgment, it is pretty much material whether it is sold by one sheriff or another. Either would be anxious to get for it all it would bring, and if it be real estate it can not, at any rate, according to our policy, *be sold for less than two-thirds of the appraised value. It was the practice of the general court of the territory to issue the vendi. to the officer who made the levy, and that practice was continued, in Hamilton county at least, under the state government. In that county, which is the most populous in the state, and in which the general court did more business than in any other, this course was invariably pursued, as appears from the case under consideration, until the act of 1824. Into how many counties this practice, after the organization of the state government, extended, we know not,.but we do know that in some other parts of the state it was different. Probably in most of the ■counties the vendi. was directed to the sheriff in office at the time of the date of the writ. Neither course is without authority to support it. It is certain that a practice pursued in any one county for a great length of time does not make it legal. But where it has prevailed for more than thirty years, as is the case with the one under consideration, in the county of Hamilton, this court will not be disposed to interfere with it, unless it palpably violates" some well-established rule of law. The mischief that would result from adopting a different course can not be foreseen. That it would be extremely great can not be doubted.

Although previous to 1824 there was no express enactment upon this subject, still there might have been other statutes bearing upon it. The several laws “regulating executions,” and “regulating judgments and executions,” seem to be of this character. From the enactment of the law of January 19, 1802, “ regulating •executions,” to the present time, a principle has been contained in our statutes authorizing the successor of a sheriff, or other officer who had sold lands and was incapable of making a deed, to make a deed under the order of the court from which the execution issued, •and providing that the deed thus made should be equally valid, as if made by the officer who made the sale. The law of January 19, 1802, was enacted by the general assembly of the territory, at which time the general court was the highest judicial tribunal of the country. It has already been remarked, that the practice of that court was to issue the vendí, to the same officer who made the •levy. Ohio L. L. 334. Section 12 of this statute provides, <! that -if the sheriff, or other officer, who hath made or shall make sale of lands, tenements, *or real estate, by virtue of an execution against the same, shall abscond, or be rendered unable, by death or otherwise, to make a deed for the same, it shall be lawful for any succeeding sheriff, or other officer of the county,” etc., to make a deed, under the direction of the court from' which the execution issued, the other provisions of the same 'section being complied with. This act, however, says nothing as to what officer the vendí, shall be directed. It does not interfere with the then existing practice of the court in this respect. This same principle is re-enacted in section 13 of the lawregulating judgments and executions,” passed by the state legislature, February 16, 1805, and, with but one exception, is precisely in the same words. It is again introduced into the act upon the same subject, of January 25, 1810, and of which act it constitutes section 16. Ohio L. L. 348. It is again introduced as section 17 of the act “ regulating judgments and executions,” enacted January 31, 1816. 16 Stat. Laws, 170. It constitutes section 2 of the act of February 24,1820, upon the same subject. 18 Stat. Laws, 188. In all the different statutes there is no material variation in the mode of expression. In all of them the provision is, “that if the sheriff or other officer,” etc., “ shall abscond, or be rendered unable, by death or otherwise, to make a deed,” etc. On February 1,1822, the legislature enacted a new law upon the subject of “judgments and executions,” in section 13 of which we find the same, or a similar provision, authorizing a “ successor” to make deed. 20 Stat. Laws, 68. But there is a change in the phraseology as to the contingency upon which it may be done. This provides “ that if the term of service of the sheriff or other officer, who hath made or shall make sale,” etc., ■“ shall expire, or if the said sheriff or other officer shall abscond, or be rendered unable by death or otherwise to make a deed,” etc., then the deed may be made by a “ succeeding sheriff,” etc. In the previous statutes it was made necessary to make an application to the court for an order upon “ the successor” to make a-deed where the officer making the sale had absconded, or where he was unable to make it. Under this statute it was necessary to do it, where “the term of service” of the officer making the sale-had expired. Now, I can see no more impropriety in permitting a ^sheriff who has sold land upon execution, to make a deed of conveyance after his term of service has expired, than in permitting him to sell on vendi. or otherwise under similar circumstances, and it would seem to me that, under the statute of 1822, it would have been most proper to issue the 'vendi. to the sheriff in office on the day of its date. Whether this would be absolutely necessary I do not undertake to say. This statute, however, has nothing to do with the present case. The land was sold under the law of 1810. These statutes are referred to merely for the purpose of showing that up to the year 1822, the legislature in their frequent legislation upon the subject of executions, have said nothing which would lead to uniform practice in the direction of writs of vendi. It was left to the discretion of the courts. And, even after the-Statute of 1812 above referred to, the practice continued the same-as before, different in different parts of the state. To remedy this evil, the legislature, in enacting the law “defining the duties of sheriffs,” etc., passed February 25, 1824, provided, among other things, in section 8, that “no venditioni exponas shall hereafter bo directed to, or executed by, any sheriff whose term of office may have expired,” etc. Since that law the practice has been uniform throughout the state; before it was variant. From all the consideration we have given the subject, we are not prepared to say that the vendi. of the 5th of September was improperly issued, in being directed to the late sheriff, or that it was improperly executed, in being executed by the officer to whom it was directed.

The question next to be considered is, whether the court of common pleas erred in setting aside and vacating the amended return. It does not seem to be controvorted that a sheriff or other officer may, by leave of the court, amend his return ? Nothing is more common in practice, and no injury is thereby done to the parties litigant, so long as the return, when amended, is consistent with truth. If a false return is made, the party injured has» a remedy by action. The order of the court of common pleas vacating the amended return, in the present instance, is complained of, not so much because such order was made, but because it was made after so great a length of time had elapsed. Although the order was to set aside and vacate an amended return, or *more properly speaking, to vacate an order previously made by the same court, thereby reinstating the return originally made -by the officer executing the process, still I do not perceive that it materially varies from ordinary amendments of returns.

I know of no law fixing upon any length of time as an absolute bar to motions for leave to make such amendments. The amendment may be made after the term of office has expired. 6 Bac. 160. In the state of New York it has been decided that after a lapse of twenty years, no judicial proceedings whatever ought to be set aside for irregularity. 7 Johns. 556. In South Carolina it has been said that it would be dangerous to set aside such proceedings twelve years after judgment. 1 Bay, 338. Which of these rules shall we adopt? If we take the New York rule, then the motion was made and the vacating order entered within time; if the South Carolina rule, then it was not within time. The opinions of the courts of other states are entitled to much consideration, and will, I trust, by this court, always be treated with respect. But before they can be received as conclusive upon us upon a question of practice, there must be a conformity of decision in the courts of the different states whose practice is referred to. Now the decisions above referred to, and they are cited by the counsel for the plaintiff, do not show this uniformity. Motions to set aside any judicial proceeding, or to amend any return, should undoubtedly be made within reasonable time. In New York, if it be done within twenty years it is well; but in South Carolina, it must be done within twelve. The inference I draw from this diversity is, that there is no positive rule of law upon the subject. Much, nay -everything, must be left to the sound discretion of the court. A .court should unquestionably be more cautious in permitting an amendment, after a great lapse of time, than where the transactions are fresh, and the circumstances may be supposed to be more fully within the recollection of the officer making the amendment. It can not but be seen, however, that the present case is somewhat peculiar in its circumstances. The sheriff had returned that he Jiad sold the land and made the money. This return remained upon the execution during bis lifetime, but after his death it wasamended at the suggestion of his administrators. *If the court were satisfied that the order for this amendment was improperly made, it was within their discretion to vacate it, thereby.leaving, the return upon the execution as it was left by the officer to whom it was directed, and by whom it was executed. The question now to be considered, is not whether this court, under similar circumstances, would have done as was done by the court of common pleas, but whether that court, in the exercise of thoir discretionary power upon this subject, have violated any principle of law. We do not perceive that they have.

It is further alleged, that the court erred in ordering a deed after the lapse of fifteen ye'ars from the time of the sale.

The law “regulating executions,” passed January 19, 1802, and which has already been referred to, provided that if any sheriff or other officer, having sold land, should “abscond, orbe rendered unable, by death or otherwise, to make a deed of conveyance foi" the same,” etc., then “ the successor” of such sheriff or other office]" might, under the order of the court from which the execution issued, make a deed to the purchaser, which should, to all intents, be equally valid as if made bj7 the officer making the sale. The same principle has been contained in all the statutes upon the same subject, and there has been no less than seven of them, besides amendatory acts, from that time to the present. In the present case the execution was issued from the court of common pleas. It was proven, to the satisfaction of that court, that sale was-“fairly and legally made,” and that the vendee “had paid the purchase money.” The fact, that the purchase money had been paid, constituted, on the part of Walker, a strong equitable claim, and the proof introduced was such as, in contemplation of the statute, would require of the court, in ordinary cases, to make the order. It certainly is not a little extraordinary that the business-should have rested for so great a length of time. Nothing seems to have been done in it from 1812 to 1827. This circumstance would undoubtedly make the coui’t more astute in the examination of the testimony; still, as the statute makes no provision as to the time within which the order shall be made, we can not say that this* circumstance, of itself, would be sufficient to render the order, when-: made, illegal.

*It has been urged in argument, that the deed thus to bn. made should be made by the immediate successor of the officer making sale. But is this a fair construction of the statutes on the subject? To the court it would seem that it is not. It is true that all the statutes “regulating executions,” up to the year 1822,, speak of “the successor” as the person who shall make the deed in case the officer making the sale shall be unable to make it. The definite article, “the” being made use of, perhaps the strict grammatical construction would confine the power of making deeds to-the immediate successor of the officer making the sale. Courts,, however, do not seek principally for grammatical construction in-ascertaining the meaning of statutes. It. is their duty to carry into effect the intention of the enacting power, although, in so doing, the rules of grammar may be violated. To arrive at this intention, perhaps there is no rule of more general application, than this: to “considerthe old law, the mischief,and the remedy.” Suppose we apply this rule to the statute of January 19, 1822. I speak of this statute, because it is the first in our statute books which authorizes “the successor” to make deeds where his predecessor had made sale, and because since that time there has been no change upon the subject, certainly not before 1822. What them was the old law when this statute was enacted? The officer who made the sale must make the deed. What was the mischief? The officer who made the sale might “abscond, or be rendered unable, by death or otherwise,” to make the deed; consequently the purchaser must lose the benefit of the purchase, and if the purchase money had been paid, must also lose the purchase money. What is the remedy? In case of the inability of the officer who made the sale to make the deed, any individual, who may subsequently hold the same office, may, under the direction of the court from which the execution issued, make the necessary deed and conveyance, which shall have the same effect, “to all intents,” as if made by the officer making the sale. Adopt the. construction contended for by the plaintiff’s counsel and the mischief resulting from the old law would be but partially remedied. The immediate “successor” of the officer making the sale, might, as well as his predecessor, be “rendered unable, by death or otherwise,” to make a deed. He *might, in fact, vacate his office before a term of the court-from which the execution issued should intervene, in which the necessary order could be made. The intention of the legislature must have been to secure to the purchaser the benefit of his purchase; and this intention could not, in every case, be carried into effect were the construction insisted upon by the counsel for the plaintiff to prevail. However it might have been under the laws previous to 1822, the act of the 1st February of that year, “regulating judgments and executions,” places the question beyond a doubt. Section 13 of that act provides, that if the officer making the sale shall be incapable of making a deed, then “it shall be lawful for any succeeding sheriff or other officer to do it. 20 Stat. Laws, 74. The same phraseology is used in the statute of February 4, 1824 (22 Stat. Laws, 113), under which statute the deed in the present case was ordered.

It has been further urged, that the vendí., and the proceedings under the same, were irregular, inasmuch as there was no indorsement of nulla bona upon the writ of ft. fa. Had this been the fact, a difficult question might have been presented. But we are satisfied, from a careful examination of the record in this case, no •question is presented as to the necessity of such indorsement. •Counsel have been led into an error by confounding the case of Fowble v. Walker, decided at the present special session, with this case. In that ease, it is true, it was proposed to show that there was no indorsement of nulla bona, but the court of common pleas rejected the evidence, as coming in at too late a period. In the present case, it does not appear whether such indorsement was or was not made.

Upon the whole, we are not prepared to say that there is anything erroneous in the decision of the court of common pleas; the .same must therefore be affirmed.