Richard H. Miles vs. Francis Knott's Lessee, 12 G. & J. 442

Archer, J., delivered the opinion of this court. The plaintiff to support the issue joined on his part, offered in evidence to the jury a record of the Court of Appeals, by which it appeared, that a judgment had been obtained in St. Mary’s county court, by Francis Knott against William H. Llewellin, for the sum of $295.83| cents and costs, on the first Monday of August, 1823; and was, on the 29th day of September, 1823, superseded, and in the confession of judgment by way of supersedeas, the amount of the judgment is stated to be $295.83f cents.

From this supersedeas judgment, an appeal was taken to the Court of Appeals, and on the 16th July, 1825, the judgment was affirmed. On the 14th September, 1825, the judgment thus affirmed, was superseded by the defendants, together with Richard II.

Miles, and in the said supersedeas judgment, the parties confess judgment for the sum of $235.83|- cents, debt, with interest and costs, which were recovered by Francis Knott in the Court of Appeals, on the 16th July, 1825, and the supersedeas proceeds, as follows, “the said sum of $295.83J cents, current money, debt, to be released on the payment of $295.83J cents, with interest, &c., and costs, &c., to be levied of your bodies, goods, &c., in case the said defendants in the said judgment, shall not pay and satisfy to Francis Knott, the said sum of $295.83-|- cents, current money, damages and costs; to be released on payment of $295.83|-, with interest, and costs, so as aforesaid recovered against them, with the additional costs thereon, on the 14th day of March next.” The plaintiff further offered in evidence a fi.fa. issued on the said supersedeas judgment, on the 14tli day of October, 1828; by this it appears that the supersedeas judgment is described, as corresponding with the judgment in the Court of Appeals.

The defendant objected to the readying of the fi. fa. in evidence, on the ground, that it did not reeite correctly the judgment of Francis Knott against Richard H. Miles and others, in this; that the supersedeas judgment is confessed for the sum of $235.83-| cents, and the fi.fa. reeites a judgment for $295.83|- cents, but that the court admitted the fi.fa. to be read in evidence, and from this opinion of the court an exception has been taken.

If the defendant were right in supposing that there was a mis-recital of the judgment in the fi.fa., we think, that for such cause only, the fi. fa. would not be inadmissible in evidence. It must be remembered, that no exception is taken to the judgment, but to the issuing of a fi.fa.-, not corresponding with the judgment. The failure to recite the judgment accurately in the fi.fa., did not render the process void. It was erroneous process. But such an error would not affect the title of a purchaser, acquired by a sale under it. 4 Wend. 464. 12 Wend. 96, 97.

For this reason, we think the evidence offered in the first bill of exceptions, was admissible. The 2nd exception was intended to raise the question whether a purchaser under a fi. fa., issued more than three years after the rendition of the judgment, acquired a title in virtue of such sale. The act of 1778, chap.- 21, gives plaintiffs a year after a stay entered on the docket, to issue execution. The act of 1823, chap. 194, gives three years from the date of the judgment, within which to issue execution. The act of 1823, chap. 194, is too explicit to admit of a doubt.

The Legislature did not mean to give three years' from the expiration of the stay, but three years from the date of the judgment. They use the words “stay,” in the law of 1778, and the words “judgment,” in the law of 1823, from the date of which executions are to1 issue.

By the use of such different terms, it is fair to infer they meant different things; accordingly, if there he no stay on the judgment, or a stay not exceeding two years, execution must be taken out within three years from the date of the' judgment — if the stay he for three years, or a longer period than three years, then execution may be taken out within a year from the expiration of such stay, according to the act of 1778, chap. 21. The judgment of supersedeas dates from the day of its confession, and not from the day of its being filed, at least, so far as this question is concerned.

How far it operates as a lien from the date of its confession, is not a question involved in this case; but the only question is, what is the date to which you are to look in issuing an execution. And this question is answered by the act of Assembly of 1823, which declares it may be issued at any time within three years from the date of the judgment. In this case, the three years from the date of the supersedeas judgment expired on the 14th day of September, 1825, and the fi.fcL. on which the land was sold, issued on the 14th of October, 1828, more than three years from the date of the judgment.

No execution, therefore, could rightfully issue on the judgment, without a sci. fa. to revive it. Could a title pass to a purchaser under an execution thus issued? This depends on the solution of the question, whether the execution is voidable or void. If the latter, clearly no title would pass. But if the former, the purchaser acquires a title.

That the process is only voidable, is abundantly es-tablisbed by many authorities, which will be found referred to in the opinion of Chancellor Kent, 16 John. 575, 576, and he there says that the question of irregularity can never be discussed collaterally in another suit; and to the same effect will be found 8 John. Rep. 361. We, therefore, think the court below committed no error in the opinion by them expressed in the second bill of exceptions. We are of opinion, that the evidence offered in the third bill of exceptions was inadmissible.

The register of wills was not authorised by law to furnish such a copy of vouchers,, passed by an executor or administrator, as will be received in evidence to establish the facts set out on the face of such vouchers. The law does not require these vouchers to be recorded. They belong to the executor or administrator, and are not placed in the office for record. We think the court were right in the opinion expressed by them in the fourth bill of exceptions.

It is admitted, that the defendant in this suit is the same person who was debtor in the judgment obtained by Knott; he is here taking defence for this land, and resisting the right of the plaintiff to recover. In the record he is called the tenant of Mr. Ellis. Whatever interest he has in the land, if the plaintiff establishes the fact of his being a purchaser under a judgment and fi.fa. against the defendant, such land should be recovered by the plaintiff, whether he is enabled to establish his right by a regular deduction of title from the State or not, is immaterial.

All that is required, is the production on the part of the plaintiff of the judgment against the defendant, the fieri facias, and the sale of the land to the plaintiff. Fenwick vs. Floyd, 1 Harr. & G. 174. The plaintiff, in the fifth bill of exceptions, offered to prove by a witness, that he was present at the sale of the real estate made by George H. Morgan, deputy sheriff, on the fieri facias of Francis Knott vs. William H.

Llewellin and others; that the deputy sheriff who made the sale, is dead, and that he heard him state, that he sold the land called Penerine, and that Francis Knott, the plaintiff in they?, fa., and lessor of the plaintiff, was the purchaser. The question on this exception arises on the admissibility of the evidence above offered. This evidence is objected to, both as hearsay evidence, and as contradicting the sheriff’s return. It is insisted, lhat it ought to be received as part of the res gesta.

If this were a case in which evidence of the res gesta was admissible, still this evidence could not be received, because the statement of the deputy sheriff is not proved to have been made at the time of the sale. It may have been made at anytime between the sale and the death of the deputy sheriff. But if the declarations offered in evidence had been made at the time of the sale, that the evidence contradicts the sheriff’s return, is an unsuperable objection to its admissibility. The sheriff returns a sale of a tract of land called Pennygreen, the evidence is to show that he sold a tract called Penerine.

There is no evidence that they are the same tract; on the contrary, the presumption would be, the names being different, that the tracts were different. The levy was on Pennygreen, and no other tract could be legally sold but Pennygreen, yet the evidence would make the sheriff, although he returns a levy and sale of one tract, declare he had sold another tract not levied upon. We are, therefore, of opinion, that the evidence offered in this exception, was inadmissible, and should have been rejected by the court below. After verdict, a motion was made in arrest of judgment.

The jury found for the plaintiff — for all that part of a tract ofland called Penerine: beginning at a blue stone, marked A on the plot, and running thence to a locust, marked B; thence with the meanders of the run to a poplar, marked C; thence to D; thence to E; thence to the beginning. The run called for in the verdict is not located on the plots, so that the line from B to C is entirely uncertain whether it is within or without the location of the land called Penerine, as located by the plaintiff, is unknown, and is incapable of ascertainment.

On this account the verdict is so imperfect, that no judgment could be entered thereon, and no writ of possession could be executed. The next question which arises, is on the motion in arrest of judgment. We have seen that the verdict is imperfect and uncertain. The matter in issue is not so ascertained, that the court could render any judgment capable of being executed. The motion in arrest, in many cases, as where the pleadings are defective, may admit the correctness of the verdict, but this is not universally the case. Judgments are sometimes arrested for faults in the verdict. Gould on Plead. 522.

The same author refers to many instances of defective verdicts, where the remedy is by motion in arrest. In Dorsey’s Lectures, 73, it is said, that a judgment in ejectment will be arrested for uncertainty. Where a judgment is arrested for such defects in the verdict, a venire de novo must be awarded. Gould 526. The .court below were, therefore, in error in not arresting the judgment in this case, which we have here is uncertain and imperfect. As it is uncertain whether the finding is within or without .the pretensions of the plaintiff, it is a case, certainly not proper for a remittitur.

We express no opinion on the question, whether the supersedeas judgment is a binding and operative judgment, no question on this subject having been raised in the bills of exceptions* JUDGMENT REVERSED AND PROCEDENDO AWARDED.