19 Md. 151 | Md. | 1862
delivered the opinion of this Court:
This appeal was taken from a judgment in favor of the appellee, in an action of trespass q. c. /., brought l>y the appellants, for cutting timber on a tract of land called
The return made by the sheriff, on the execution issued on the judgment obtained in May 1821, was, that he had taken as of the goods, chattels, lands and tenements of Henry Pratt, “the following property, the farm where Edward Potts now lives, containing 200 acres.” Evidence was offered by the appellants to show that Edward Potts did not occupy the particular tract called" Ohesnut Meadow,” at the time the property was seized by the sheriff.
The appellants took three exceptions, the 1st and 3rd of which they abandoned in argument, and the only question for consideration is presented by the 2nd exception. The theory of the instruction sought in this exception was, that the sheriff’s return to the fieri facias constituted the only evidence of the extent of the levy, and considering it in connection with the evidence that Potts was not then in-possession of Ohesnut Meadow, the seizure did not embrace that tract, and that the sheriff, for that reason, had no power to make the sale and conveyance of it to Solomon-
In making a sene under an execution, so as to vest a valid title in the purchaser, it is necessary that the sheriff should first effect an actual seizure; for, in contemplation of law, his power to sell is limited to property taken into custody by the levy of the writ oí fieri facias, The sheriff, to be regular in his proceeding, should, by a proper description in his return to the fieri facias or schedule, show the extent and subject of the levy, for if the description be so general as not to point out nor afford means for locating the property seized, the return could be sot aside or quashed on motion, although that defect would he cured by either an amended return to the fieri facias, by the return to the vendi., or, hy the deed to the purchaser, so describing the subject of the levy as to give certainty and legal effect to the seizure actually made under the fieri facias. A purchaser of property sold by a sheriff, under an execution, may deduce Ms title from any part of the official proceedings of the sheriff, and if there he in any of them evidence showing with certainty, and hy a sufficient description, the actual seizure of the property sold, the sale will be effective, and the title of the purchaser valid in that respect. Berry vs. Griffith, 2 H. & G., 337. Clarke vs. Belmear, 1 G. & J., 443. Estep & Hall’s Lessee, vs. Weems, 6 G. & J., 303. Upon these authorities the instruction contended for could not have been granted, as it assumes the sheriff’s return to th a fieri facias, offered in evidence, to he the only proper evidence of the extent of the levy made hy him, notwithstanding the particular description, hy metes and bounds, contained in the deed to Solomon Wright, of the
Judgment affirmed,