Wright v. Orrell

Cociiran, J.,

delivered the opinion of this Court:

This appeal was taken from a judgment in favor of the appellee, in an action of trespass q. c. /., brought l>y the appellants, for cutting timber on a tract of land called “Ohesnut Meadow,” claimed by them Tinder a sheriff’s deed, executed in October 1825, on a sale made in pursuance of- an execution on a judgment obtained against Henry Pratt,, in May 1822. The appellee took his defence on a plea that the title to the locus in quo was in himself, and in support of that defence, offered in evidence a sheriff’s deed, through which his title was derived, executed on a sale made in April 1822, in pursuance of sundry executions on.judgments obtained against Pratt; he also offered in evidence the sheriff’s return and schedule to one of the executions issued on a judgment entered in May 1821. It appears from the record that the tract called “Ohesnut Meadow,” constituting a part of the property conveyed to Solomon Wright, by the deed executed in April 1822, also constituted a part of the property described in the sheriff’s deed, executed in October 1825, under which the appellants claim.

The return made by the sheriff, on the execution issued on the judgment obtained in May 1821, was, that he had taken as of the goods, chattels, lands and tenements of Henry Pratt, “the following property, the farm where Edward Potts now lives, containing 200 acres.” Evidence was offered by the appellants to show that Edward Potts did not occupy the particular tract called" Ohesnut Meadow,” at the time the property was seized by the sheriff.

The appellants took three exceptions, the 1st and 3rd of which they abandoned in argument, and the only question for consideration is presented by the 2nd exception. The theory of the instruction sought in this exception was, that the sheriff’s return to the fieri facias constituted the only evidence of the extent of the levy, and considering it in connection with the evidence that Potts was not then in-possession of Ohesnut Meadow, the seizure did not embrace that tract, and that the sheriff, for that reason, had no power to make the sale and conveyance of it to Solomon-Wright. We have therefore to consider, 1st, whether the sheriff’s return to the fieri facias was the only proper evidence of the extent of the seizure; mid, if so, 2nd, whether the return offered in evidence was sufficient to authorize the sale and conveyance, as described in the sheriff’s deed to • Sol onion W right.

In making a sene under an execution, so as to vest a valid title in the purchaser, it is necessary that the sheriff should first effect an actual seizure; for, in contemplation of law, his power to sell is limited to property taken into custody by the levy of the writ oí fieri facias, The sheriff, to be regular in his proceeding, should, by a proper description in his return to the fieri facias or schedule, show the extent and subject of the levy, for if the description be so general as not to point out nor afford means for locating the property seized, the return could be sot aside or quashed on motion, although that defect would he cured by either an amended return to the fieri facias, by the return to the vendi., or, hy the deed to the purchaser, so describing the subject of the levy as to give certainty and legal effect to the seizure actually made under the fieri facias. A purchaser of property sold by a sheriff, under an execution, may deduce Ms title from any part of the official proceedings of the sheriff, and if there he in any of them evidence showing with certainty, and hy a sufficient description, the actual seizure of the property sold, the sale will be effective, and the title of the purchaser valid in that respect. Berry vs. Griffith, 2 H. & G., 337. Clarke vs. Belmear, 1 G. & J., 443. Estep & Hall’s Lessee, vs. Weems, 6 G. & J., 303. Upon these authorities the instruction contended for could not have been granted, as it assumes the sheriff’s return to th a fieri facias, offered in evidence, to he the only proper evidence of the extent of the levy made hy him, notwithstanding the particular description, hy metes and bounds, contained in the deed to Solomon Wright, of the property seized under that and the other writs of execution, therein recited, of which the purchaser, or the defendant claiming under him, had a right to avail himself. The return to the fieri facias, on the judgment of May 1821, is general, though, in our opinion, not uncertain nor inconsistent with the full and particular description contained in the sheriff’s deed to Wright. The record contains no evidence that “Ohesnut Meadow” was not a part of the farm where Edward Potts lived, nor was any offered to show that the sheriff seized only the part of Pratt’s land then in the occupancy and possession of Potts. The levy was on all the farm where Edward Potts lived, and the extent of the seizure could not be limited by evidence showing his occupation and possession of a particular portion of it. The sheriff’s return to the fieri facias was proper evidence of what he had levied on, and, in our opinion, was sufficient, in that respect, to support the title of Wright, although, in view of the more accurate and intelligible description contained in the deed, it was not the best evidence of the extent of the seizure. If the return was doubtful or uncertain, which, we think, does not appeal’, all doubt was removed by the recitals and description of the property contained in the deed; and as the purchaser, in support of his title, may look to all the sheriff’s official proceedings, for the purpose of giving certainty and effect to his seizure and sale, we think there was no error in refusing the instruction sought.

(Decided December 5th, 1862.)

Judgment affirmed,