Smull v. Mickley

Tod, J. In this ejectment the plaintiff claimed the land under the will of his father, George Smull, deceased. The defendants held under a sheriff’s deed, in pursuance of a judgment against Peter Smull, the executor of George Smull, for a debt of the testator. On the trial in the Circuit Court, sundry objections were [97] made by the plaintiff to the validity of the defendants’ title under the sheriff’s sale. All these objections are deemed by us unavailable. They were all deemed so by the judge who tried the cause, except one. The Venditioni Exponas on which the land was sold, had not been returned by the sheriff until after the acknowledgment of his deed in court. In fact, there was no return of it till long after the sheriff’s office had expired. The Judge decided this to be a fatal defect. Upon further reflection, he now thinks his decision to have been erroneous, and we all think so. The negligence of sheriffs to return their writs of Venditioni Exponas, after sales of land, has been by no means uncommon in many counties. It is a negligence much to be censured. The papers ought to be in their proper places. Some courts have made a general rule against receiving the acknowledgment of a deed before the writ is returned. But it would seem hard to begin now to visit this old fault of the sheriff upon-the vendee, who has no agency in the matter, and who may well be allowed to presume that every thing done by the court is done in due form. To sustain the objection might be very hurtful to the security of titles. The return is not always made a matter of record any further than by indorsement on the writ. I believe the precise date of the return is never set' down. Whatever of form or substance there can be in a Venditioni Exponas may be made out by the Fieri Facias and docket entry, aided by the common forms of the office, without the writ. For all purposes of information to the court the sheriff’s deed is a return. It is produced, read in court, and entered on the record. It recites the sale, the mode and time of it, the name of the purchaser, the price and the payment of the money. Judgment reversed, and a new trial awarded.