Ware v. Bradford

GOLDTHWAITE, J. 1. The plaintiff in error, has relied, chiefly, on two positions, as showing error in the proceeding now to be examined. The first of these relates to the suppos [681] ed variance in the description of the lands recovered by the verdict, from those described in the declaration; and the second embraces all the supposed errors, and irregularties in the advertisement, and other proceedings previous to the execution of the deed. The description of the lands in the declaration, is very vague- and indeterminate. It can only be made certain by reference to a deed which is not pretended to be set out. This point was very fully considered in Sturdevant v. The heirs Murrell, of in 8 Porter 317, and the conclusion then, was, that in such a case as this, the declaration ought to describe the land in controversy with so much certainty and precision, as will inform the defendant what he is to defend against. But it was also held in that case, that after plea pleaded the objection to the declaration was unavailable, unless the insufficient description was also carried into the verdict and judgment. This decision was made in the terms of the statute of 1811, which provides, that after issue joined in an ejectment upon the title only, no exception to form or substance shall be taken to the declaration in any Court. [Aik. Dig. 266 S. 46.] We think it evident, that the north half has been inserted in the transcript by a clerical mistake, as the endorsement of the writ corresponds in this particular with the verdict, and it is entirely out uf the question, from all the evidence in the case, that the controversy, had any thing to do with the north half, of the section of which the one-eighth had been before stated with certainty of description. We should feel well warranted therefore in deciding this to be a clerical error, and consequently, would omit to notice it, or consider it as amended. 2. But independent of this, we think it ^covered by the statute. If no objection can be raised to the declaration after verdict, it cannot be placed in connexion with any other matter to show error, unless it be made a part of the subsequent proceedings. And in the latter event, the objection would not be to the declaration as such, but to the insufficiency of the verdict, if that formed the subject of complaint. Such was the case in Sturdevant v. MurrePs heirs, before cited, when an insufficient description in the declaration was re [682] ferred to as the description of the Jand in the verdict. We think that the variance cannot be now considered, and the verdict is certain and distinct. The only error consists in one of the lines running to the section line to the half mile stake, when it would have been more precisely accurate to have said by the section line to the stake. 3. All the questions raised at the trial with respect to the supposed irregularities may be disposed of with a very brief examination. Lands are declared subject to the payment of all judgments and decrees by the 9th section of the Act of 1812. (Digest 163.) And by the same Act it is declared, that the sheriff shall make a tide to the purchaser, which shall vest all the defendant’s title, &c. It is true, that by the same statute the sheriff is required to advertise the lands thirty days, but we consider this to be a direction to the sheriff merely, and cannot avoid the sale, when the enquiry is as to the effect of the sheriff’s deed. The question here presented, though novel in our own State, has frequently received adjudication elsewhere, and it may be assumed as settled law, that a sheriff’s deed cannot be collaterally impeached for any irregularity in his proceedings, or in tile process under which he sells. All that is essential in such a case, is a judgment, execution thereon, levy and the sheriff’s deed. In the case of Wheaton v. Sexton. 4 Wheat. 503, the Supreme Court of the United States expressed some astonishment, that a similar question should be raised in that Court, and say that the purchaser depends on the judgment, the levy and the deed. All other questions are between the parties and the Marshall. So also, it has often been held, that the purchaser is not bound or affected by the irregular acts of the officer, or of the plaintiff, in which he did not participate. [Kinney v. Scott, 1 Bibb 155 ; Rearden v. Searcy’s heirs, 2 Ibid. 202 ; Brown v. Miller, 3 J. J. Marshall 439.] Other cases might be adduced from other States, but it is unnecessary. The reason why these irregularities do not form the subject of inquiry between the purchaser and the defendant in execu [683] tion-, seems to be, that the latter has an adequate remedy against the sheriff, for any injury he-may have sustained. Another reason why he will not be- permitted to- attack the deed collaterally, because the Court,where the judgment exists? can control the improper action of the- sheriff, and. set his proceedings aside, if any injury has resulted from his irregularities. This was held by this Court in the case of Mobile Cotton Press and Building Co. v. Moore & Magee, 9 Porter 679, where an irregular sale was set aside, after the execution of the sheriff’s deed. We are satisfied that the defendant can only enquire into the validity of the judgment in those-cases, where-his right has been divested by a sheriff’s sale, after the levy of an execution. All other questions are between him and the plaintiff, or between the parties- and^the sheriff, or those claiming under him in a direct proceeding to set aside the deed for irregularity in the sale, &c. When this is-not done the title of the purchaser cannot be impeached for any irregularity. This leads to the conclusion, that the Circuit Court did not' err in the charges given and refused. The other questions presented by the exceptions have not been seriously pressed, and we- do not consider ourselves-called on to examine them Let the judgment be affirmed. COLLIER, C. J. — After the defendant has pleaded “ not guilty,” to an action of trespass, to try titles, he cannot avail himself of an objection to the declaration. But the proof of the plaintiff must conform-to his. declaration — it is there we are to look, to ascertain what is in issue between the parties. If the plaintiff adduces evidence to> prove his title to lands not described in the declaration, such proof is-clearly inadmissible,, and does not entitlé him to recover. Whether in the present case, the declaration- as copied into the record, does not discover a clerical error, rather than a substantial misdescription of the land, we need not inquire. •