Langley v. Jones

Bartol, C. J., delivered the opinion of the Court. This suit was brought by the appellants; the parties on each side claimed title under Robert F. Chew. The title of the defendants was derived under a seizure and sale by the sheriff by virtue of a writ of fieri fiadas against Robert F. Chew. In support of which they offered in evidence the judgment and execution, with the return of the sheriff thereto, and also the deed of the sheriff conyeying the land to the purchaser. This title was assailed upon the ground that the seizure made by the sheriff under the fieri fiadas so far as respected the tracts called “ Gidor” and “Gileard” was insufficient and void for uncertainty in the 'description of the land taken under the levy; and consequently no title passed to the purchaser. . The schedule returned by the sheriff of the property seized is as follows: — 177 — “A schedule of the several tracts of land of Eobert F. Chew, levied on and taken in execution at suit of Hanson Clarke, to wit: All the right, title, claim, interest and estate, in and to the several tracts, parts of tracts of land lying in Prince George’s county, named as follows: Moore’s Part of Barbadoes, enlarged, containing 193 acres, part of a tract called Gidor, containing 20 acres, and part of a tract called Gileard, containing 61J acres, more or less.” The advertisement of sale accompanying the return, described the property in the same way. The sale was made on the 13th day of April, 1829. On the 15th day of the same month, the sheriff executed a deed to the purchaser, reciting that he had levied upon a tract of laud called “Barbadoes,” a tract of land called “Gidor,” and a tract of land called “Gileard,” and sold the said several tracts of land so as aforesaid taken in execution, &c. The point raised by the first prayer of the appellants is that no title passed to the purchaser in the tracts called “Gidor” and “Gileard;” because the sheriff in his schedule and return to the fieri facias and in the advertisement, states that he had seized and levied upon part of Gidor and part of Gileard, without indicating with sufficient certainty what part of said lands were so seized and levied upon by him. Unquestionably the return to the fieri facias of the seizure and sale is wholly defective and insufficient. In Clarke vs. Belmear, 1 G. & J., 443, it was held that “a return by the sheriff to a writ of fieri facias that he had levied upon * part of a tract called B, containing, &c.,’ is not sufficient, would be quashed on motion, and would be unavailable in ejectment to prove title in a purchaser.” The same proposition was decided in Thomas’s Lessee vs. Turvey, 1 H. & J., 435, and such has always been the uniform and established doctrine in Maryland; because such a return is altogether uncertain, and affords no means for locating the property seized and sold. — 178 — Bat the appellees contend that the purchaser is not confined to the return made to the fieri facias, that he has a right in support of his title to resort to all the official proceedings of the sheriff; that when the return to the fieri facias is defective, it may be amended and rendered certain, by the return of the sheriff to the vendi, or by the sheriff’s deed to the purchaser; and that the defective seizure in this case has been cured by the recitals in the sheriff’s deed. In support of this position we have been referred to Clarke vs. Belmear, 1 G. & J., 443, and Wright vs. Orrell, 19 Md., 151. It is necessary to examine those cases in order to see how far they sustain the position of the appellees. In Clarke vs. Belmear, the return to the fieri facias and the schedule therewith, stated the levy to be upon “ part of Burgess’s Delight, part of Clarke’s Fancy, and part of • Hickory Thicket, supposed to contain 275 acres.” A writ of venditioni exponas was thereupon issued, and in the sheriff’s return to this writ he describes the land seized and sold by metes and bounds, describing the same as being “ the whole of the said several tracts of which the defendant was in possession at the time of the sale,” thereby rendering certain the land which had been seized, and thus the defective description in the return to the first writ was cured. Anri so in Wright vs. Orrell, the seizure was of “the following property, the farm where Edward Potts now lives, containing 200 acres,” and it was held that the deed of the sheriff containing a full and particular description of the land seized and sold, as the “farm on which Potts lived,” was legal and competent evidence in support of the purchaser’s title, and for the purpose of supplying a more accurate and intelligible description of the property actually seized and sold under the execution. To this extent and for this purpose, the purchaser is entitled to rely upon the sheriff’s deed,- as part of his official proceedings. — 179 — In this case the deed of the sheriff' is invoked for a very-different purpose; not to cure a mere defect in the description of the property seized under the fieri faeias, but to change the extent of the levy; and thus by a recital in the deed to make it operate to convey, not the land seized under the execution, but other and different land. No case has gone so far as to authorize us to give such effect to the deed of the sheriff; and indeed it would be unreasonable, it seems to us, to give any such effect to the recitals in the deed. Its office is to convey to the purchaser the property seized and sold under the execution, it may by a more precise and formal description cure the defects in the return growing out of the generality of description; but it cannot operate to convey property which has not been seized by the sheriff, or by its recitals to change or enlarge the extent of the seizure. To give to the deed such effect, might lead to great wrong and injustice. Although it is in one sense an official act by the sheriff, yet it is an act done in pais, and is not like his return to a fieri faeias or vendi an act done in Court, subject to the Court’s supervision and correction. As very well stated in the appellants’ brief, “ it is one thing to make perfect by a special return or a deed what was uncertain and imperfect, by statements or recitals consistent with what had been done, and quite another thing to attempt the same result by averments showing a different levy and return from those actually made.” In Waters vs. Duvall, 11 G. & J., 37, a question arose upon the sufficiency of a purchaser’s title under a sheriff’s sale; in that case, as in this, the return to the fieri facias set forth a levy upon part of a tract of land called Friendship, containing one hundred and eighty acres. In the return to the vendi, the sheriff stated that he had sold the whole tract. The Court decided that, “ it not appearing by the return of the sale what part of the entire tract sold, had been seized under the first writ, the whole sale was necessarily void for uncertainty.” — 180 — There, as here, an attempt was made to support the sale by relying upon the sheriff’s deed. But the Court decided expressly, that the defect was not cured or remedied by the deeds executed by the sheriff to the purchaser. We have referred to the record of the case of Waters vs. Duvall, in Liber R. W. G, No. K — the sheriff’s deed is on pages 45, 46 and 47, and is almost identical with the deed in this case. There the sheriff recited in the deed that he had levied on a tract called Friendship, called in the return to the fieri facias “part of Friendship,” and proceeded to convey the said tract, “so as aforesaid levied, on and sold,” to the purchaser. The decision in Waters vs. Duvall is, therefore, an express adjudication of the very question here presented, and, in our judgment, is conclusive of the present case. It rests upon sound reason, and is supported by the plain and obvious principle, that a sheriff cannot sell and convey, under an execution, property which he has not seized. A seizure of a part of a tract of land, without designating what part, does not authorize the sheriff to sell the interest of the defendant in the whole tract; nor is the defect in the levy cured by a mere recital in his deed that he had levied on the whole tract. We are of opinion, therefore, that the first prayer of the appellants ought to have been granted, and the Circuit Court erred in refusing it and granting the prayer of the appellees in the first bill of exceptions. • We concur with the ruling of the Circuit Court in rejecting the parol evidence offered by the plaintiffs below, in the second and third bills of exceptions, and in rejecting the prayer offered by them in the fourth bill of exceptions. It was not competent to impeach the record title of those under whom the defendants claimed, by offering the parol admissions of the. parties against the record evidence; or to charge the property with a conventional trust by parol evidence. The parol evidence offered for that purpose in the — 181 — second and third exceptions, was, therefore, inadmissible, and properly rejected. In support of the ruling of the Circuit Court in these exceptions, no authority need be cited; and the action of the Circuit Court in rejecting the plaintiffs’ prayer, in the fourth bill of exceptions, is equally free from objection. The alleged irregularity of the sheriff in selling all the parcels of land in one mass, or in selling more land than was necessary to satisfy the execution — however it might have afforded ground of objection to the sale if it had been urged on motion in Court at the proper time, cannot be relied on for the purpose of impeaching the purchaser’s title in this suit. (Decided 1st July, 1870.) Judgment reversed, and neiv trial awarded.