In re Deputy

Lore, C. J:—

In the matter of the petition of John P. Deputy alleging that in 1859 the then sheriff made a deed under a levari facias, but that he omitted the words “heirs and assigns,” the rule is upon the present sheriff to make a deed in pursuance of the statute.

Revised Code, 837.

The Court have fully considered the matter, and we are in entire accord that the prayer of the petitioner ought to be granted.

This is a remedial statute, and the application seems to come within the scope of the remedy of the statute. We therefore grant the petition, and the order is made upon the sheriff to make the deed in pursuance of the writ and the sale. Not having made the deed in pursuance thereof, it was, in fact, not in pursuance of the statute and not in pursuance of authority. We think there is ample authority for it and make the order.

This deed gives the party no additional rights. It simply-^ gives him whatever the party was entitled to at the time of the sale.

Spruance, J:—

We have given to this case very careful consideration, as it presents several novel features.

We know of no case in which such an application has been made after the lapse of so long a time. It is now about thirty-eight years since the defective deed of the sheriff was made. We do not think, however, that this lapse of time warrants the refusal of the order, as there is no statutory limitation of time within which the court may exercise the power given by Section 29, Revised Code, 837.

All of the proceedings under which the land was sold, down to the deed of the sheriff, were regular. The estate mortgaged and the estate sold by the sheriff was a fee simple. The sheriff’s deed conveyed a life estate only. This deed was therefore not such as Section 26 of the act required him to make, viz : “a good and sufficient deed for the premises so sold.”

By the provisions of Section 27 of the act, the grantee of the sheriff was entitled to hold the premises for such estate as he for whose debt the same were sold held the same, but this deed conveyed a less estate.

Section 29 of the act authorizes the court to require the sheriff in office to make a deed where the officer making the sale is out of office and the purchase money is paid, “ without a deed being made pursuant to such sale.” This case comes within these provisions. A deed was made, but it was not ‘1 pursuant to such sale.”-

We make this order the more readily because of the provisions of Section 30 of the act, which save all persons interested from any injury in case the order is made improvidently.

The sheriff executing the order incurs no risk, as he is merely the instrument of the court.

The grantee in the deed made under the order of the court takes only the title which can or ought to be passed, and if he is not the person entitled, or if a greater estate be conveyed than he is entitled to, he is at most but the trustee of the person entitled.