1 Or. 19 | Or. | 1853
Norton now moved to quash the execution, because it commanded the sheriff to make due return thereof, instead of commanding him to return it within thirty days from its date.
No change was made in these provisions by our legislature, except in substituting thirty for seventy days; so that, while the sheriff was compelled to give four weeks’ notice of the sale of land on execution, he was required to return such execution in thirty day's from its issuance. In 1851 the Practice Act was passed, the first section of which declares, “ that all writs, issued by any court of record in this territory, shall run in the name of the United States of America, and bear test in the name of the clerh of said cowrt / and shall be sealed with the seal of said court, and made returnable to the first
The term all writs, as used in this section, it is argued, cannot be taken in its broad sense, for then it would include writs of habeas corpus, mandamus, &c. Writs of habeas.corpus are generally issued by the judge, and not the court; and it may well be doubted whether any -writ, issued under the seal of a court of record, unless otherwise specially provided for, can be made returnable on any other than the first day of the next term after its date. If section first of the Practice Act does not intend all writs, as it says, what writs does it mean? The succeeding sections of the act mention writs of capias, summons, subpoenas and execution, and it would be hardly fair to conclude that only a part of these were contemplated by the first section. We cannot see upon what principle it is alleged that section first applies to a writ of summons, and not to a writ of execution, when they are both treated of alike in subsequent parts of the act. No interference with the act of 1819 was intended, it is said, because that was a distinct and full law upon the subject of executions ;—so there is a full and distinct quo warranto act; yet the section referred to would certainly control writs of quo warranto. Nothing can be more reasonable than this view of the question; for we have only to ascribe an ordinary share of common sense to the legislature to suppose, that, while they required four weeks’ notice of a sale upon execution, they would give the sheriff more than thirty days in which to perform his various duties under the writ, and make return according to law. Officers, it is understood, have generally proceeded upon the assumption, that the first section of the Practice Act embraces writs of execution; and,
The motion to set aside the sale is also placed upon the ground, that no written notice thereof was given to Norton. The sheriff’s return shows, that when Norton was advised of the levy, he declared that “ it was nothing to him, as he did not own the property,” and thus, it is claimed, he waived any further notice of the sale. If the plaintiff in execution were purchaser here, the objection for want of notice might be fatal to his title; but to protect the rights of an innocent stranger as purchaser, we are inclined to hold that written notice was waived. As a general rule, when the plaintiff in execution buys in the defendant’s property to satisfy his debt, he is chargeable with all irregularities; but a stranger, who buys in good faith, is only chargeable with a substantive defect in the proceedings of the officer. Norton, in this case, either owned the property or he did not. If he did, then he made a false statement to the sheriff, inducing the belief that no steps were necessary to protect his rights at the sale, as he had none to protect; and it would be wrong now to allow him to take advantage of that false statement, by alleging for error what was the probable, if not necessary, result of his own conduct. If Norton did not own the lot, then he has not been injured, and cannot complain. The sheriff, it is said, treated and sold the property as Norton’s; therefore, he was bound to give the written notice. Perhaps the plaintiff took the risk of sale, and the sheriff proceeded, believing what Norton had said about his ownership of the lot; but, at any rate, he was not prevented from regarding Norton’s statements as a waiver of notiee. When, as in this case, the money of a bond fide purchaser has irrevocably gone into the hands of the plaintiff in execution, and-the sheriff has made a deed pursuant to sale, mere technicalities will not suffice to set aside such a title. Defendant, on execution, must show some positive injury to his rights, or, at least, room for injury ; but here Norton complains of a want of notice, when,