William Spear vs. Ephraim Sturdivant, 14 Me. 263

After a continuance, for advisement, the opinion of the Court was drawn up by Emery J. In this action both parties claim title under David Spear. One of the great objects of the administration of justice in civil cases is, to give the fruits of judgments by supporting the executions which issue upon them. Clerical errors in preliminary proceedings may be corrected; and according to the principles of the common law, the returns of officers may be amended on final process, with certain limitations and exceptions, so as to conform to the truth of the case.

This indulgence to human error is not intended to throw out temptations to officers at great intervals of time, to vary on the mere strength of memory only, their returns, so as to affect the vested rights of others. The amendments which officers may be permitted to make, must necessarily depend on the sound discretion of the court to which the application may be made. In the present case, no exception is raised against the regularity of the-return of the attachment of the premises on the original writ of Lincoln v. David Spear, on the 18th of July, 1828; nor against the judgment or execution issued in that suit.

The plaintiff’s deed from David Spear, was executed the 20th day of September, 1828, and recorded the 22d day of the same month. Whether the plaintiff knew of the attachment, when he took his deed, is not in evidence. The writ was duly returned to, and entered at the October term of the court to which it was returnable, and at the March Term, 1829, judgment was recovered, on which the execution issued. The return thereon is the subject of the present controversy.

An amendment of the return having been made under the authority of the Court of Common Pleas, where the precept was returnable, it is argued that the amendment ought not to have been made; that even when made, it cannot affect the rights of the plaintiff; and that there is manifest departure from the requisition of law, as to the notice said to have been given to the debtor.

In North Carolina, it is bold, that the sheriff may be permitted to make a return to an execution or amend it according to the truth of the case, at any time after the return day, even where important consequences to the rights of the parties may be produced by such amendment. 3 Murphy’s N. C. R. 128, Smith v. Daniel et al. In Rucker v. Harrison, 6 Munf. Virg.

Rep. 181, a sheriff was permitted by the Court to amend his return after a lapse of seven years from its date; and in fact to change a return where an execution was levied and a forthcoming bond taken, that “ the within bond was forfeited on the 4th of July, 1803,” to this, “ to the within judgment a supersedeas issued from the District Court of Charlottevilla, dated July 1, 1803, which writ of supersedeas the sheriff thinks was delivered to him on the day of salo. The property within named was not delivered at the day and place of sale. James C. Moorman, D.

S. for William Scott, sheriff, Campbell County.” In Massachusetts, in Wellington v. Gale, 13 Mass. R. 483, where the return of the officer was general, that ho proceeded to sell after giving public notice of tho time and place of sale, agreeably to law in such cases made and provided, it was held defective.

The late Chief Justice Parker, says, “ whether it could be amended by the officer under the direction of the Court, were the officer now living and ready to certify the essential facts omitted in the return, we are not prepared to say.” But the Court were satisfied, that no parol evidence could be properly admitted in lieu of the return of the officer. After this, in the same Court, came the case of Ingersol v. Sawyer, 2 Pick. 276.

The deputy set out all the facts of a sale of an equity of redemption in the deed, which he executed to tire purchaser and which was recorded, but tire deputy died before the return day of the execution, not having made any return thereon ; but the return, conformable to the recital in the deed, was after the deputy’s death made by the sheriff. The Court sustained the proceeding, declaring that parol evidence was not wanted for any purpose relating to the sale. The sale was on the 31st March, 1819, the deputy died on the 29th May, 1819, and the bill in equity in that case was filed the 22d of April, 1822.

At what time the sheriff made his return does not appear in the report, nor whether any notice was given on the subject. The opinion was delivered in March, 1824. ' In an old case, Dean v. Coward, in Comyn’s R. 386, a motion was made to amend a common recovery. By indentures of 8 and 9 June, 1696, lands in several villas, naming them, were conveyed to malte a tenant to the precipe for a common recovery, that is, the deed to lead tire uses.

At Trinity term, 8 Wm. 3, a recovery was suffered, but the vills Wargrane and Wallingford, two of the vills named in that deed, were omitted in all the proceedings of the recovery. In June, 1723, an heir claimed the lands in Wargrave and Wallingford, hy virtue of the entail in the settlement, and in 1726, nearly thirty years after the recoveiy was suffered, this motion was made, that the recovery should be amended by tire deed of June, 1696. After a rule to shew cause, the rule was made absolute. And many precedents were cited.

This, therefore, must have involved an amendment not only of the record of the recovery, but also what was equivalent to an amendment of the return of the sheriff, that he had caused the plaintiff to have fvdl seisin of the tenements demanded with the appurtenances. As suggested, in Emerson v. Upton, 9 Pick. 167, we do not interfere with the right of the Court of Common Pleas, to allow the officer to alter his return; but the whole matter appearing to us, the deed, the return, and the subsequent amendment, we must decide on the legal effect of the whole upon the plaintiff’s title.

It is observable, that the defendant was a stranger to the judgment and execution in favor of Lincoln v. David Spear, till he became a purchaser. The general rule of the common law is, that a purchaser at a sheriff’s sale is only bound to inquire, whether the sheriff has authority to sell, and is not bound to look into the regularity of the proceedings.

And it has been held, that if the sheriff sell a term of years on a fieri facias to a stranger, and the judgment is afterward reversed, the defendant will be restored to the money for which the term sold, not to the term itself; because the purchaser, a stranger, comes duly thereto by act of law. Cro. Eliz. 278; Cro. Jac. 246. Not so the sale and delivery of a lease to the party himself upon an elegit; that is, no sale by force of the writ delivered in extent, which being reversed, the party shall be restored to the term itself. 2 Serg. & Rawle, 426, Vastine v. Fury, opinion of Yeates J.

The course of our decisions has been to require a return by the officer of his proceedings in order to sustain the sale. The return here was made, under the direction of the Court, conformable to the deed, by which the amendment could with perfect propriety and justice be made; and we think, that notwithstanding the reasoning in Means v. Osgood, the legal effect of this proceeding is to sustain the title of the defendant. Here was something to amend by ; the notice of the registry of deeds Was communicating the truth to all concerned.

All the right of the plaintiff was subsequent to the attachment on the writ, and he took his deed necessarily subject to that incumbrance, which has been followed up seasonably by the sale of the equity of redemption, and the deed thereof put on record on the 29th of May, 1829. It is, however, objected, that the notice in writing to the debtor of the time and place of sale, was made by Zachariah B. Stevens, coroner.

We cannot consider that the sale is void for that cause, because the officer who had the execution, certifies that he had first given notice in writing of the time and place of sale, to the judgment debtor in the execution, by causing an advertisement thereof to be left at bis dwellingliouse, by Zachariah B. Stevens, coroner for said county. Thus much is stated in the deed, and it is more particularly stated in the return.

The instant that the deed from the coroner, Wescolt, was executed and delivered to the defendant, reciting the compliance with the requisitions of the statute for the sale of rights in equity, the defendant’s title was perfect, subject to the debtor’s right of redemption. It had relation back to the attachment. The money was paid. The judgment and execution so far satisfied. The 18th

section of the statute, ch. 60, says, that “ all deeds made and executed as aforesaid, shall be as effectual to all intents and purposes to convey the debtor’s right in equity aforesaid to the purchaser, his heirs and assigns, as if the same had been made and executed by such debtor or debtors.” Suppose the coroner had died immediately afterward, not having completed his return, can it be, that under such circumstances, 'a stranger coming to the possession of his deed duly by act of law, and having paid his money to discharge so far the demand against the debtor, should lose his title ?

Would it not be more appropriate, in such a case, that the deed should be considered as a return to the execution ? It is not prescribed, that a deed should set forth the circumstances preceding the sale, but if it professed to be in general terms a sale by virtue of the execution, and a correct return of the officer’s doings were made upon the execution, it is apprehended that the deed would be supported by the return.

If no collusion or oppression be practised, no one can doubt, that it is of the utmost importance to give countenance to official public sales, and not to suffer immaterial considerations to defeat them. It is best calculated to make the property produce more by exciting competition, and will tend to “ prevent odious speculations upon the distress of the debtor.” By this we do not by any means intend to impugn the decision in Means v. Osgood, further than it has been affected by subsequent decisions. In that case, the defect was palpably fatal, as the Court were then impressed.

There was nothing but mere memory, by which the amendment was to be made. But a different conclusion has since been adopted as to what is implied notice to a debtor named in an execution. And a return that he neglected to choose an appraiser, is now deemed as implying that he had notice to choose one. Sturdivant v. Sweetser, 3 Fairf. 520; Bugnon v. Howes, 13 Maine Rep. 154. We mean not to intimate an intention to overrule decisions against amendments proposed to bo made by officers after great intervals of time, merely on the supposed strength of the officer’s recollection. Exceptions overruled.