20 Or. 340 | Or. | 1891
— The first question presented by the record is the sufficiency of the execution upon which the sale was made. It appears that there had been a previous sale of all the lands described in the decree, and that the tracts of land described in this writ had been redeemed by the judgment debtor; but the writ fails to follow the decree in every essential particular except the names of the parties. The power of amendment is conceded, and in most cases should be exercised to support a title acquired at such sale; but it is still a power which must be exercised cautiously and in view of the facts of the particular case. A few months previously this land sold for $5,000; at the sale in question it only brought about $2,300. What caused this discrepancy does not appear. It cannot be claimed that so short a time had produced any effect upon the value of the property.
Courts always exercise full control over their process so that suitors shall not be prejudiced either by the form of the writ or the manner of its execution. (McKee v. Logan, 82 Mo. 524.) The defects in this writ may have been the reason why the property did not sell for as much as at the previous sale, and if so, then the parties were injured to the amount of the difference between the present and former sale. Under this view of the subject, we think the better practice would have been for the court below to have quashed the writ on the defendant’s motion rather than to have amended it This power of amendment is a very salutary one, but it ought always to be exercised in furtherance of justice. In this cause we have .concluded to reverse the decree appealed from and to quash the writ.
The other question raised is not fully presented by this record. It was said at the argument that the defendant Willis had purchased Phipps’ interest in this land before
Let the decree appealed from be reversed.