Fowble v. Rayberg and Taylor.

or be rendered unable by death or otherwise to make a deed,” etc., then the deed may be made by a "succeeding sheriff," etc. In the previous statutes it was made necessary to make an application to the court for an order upon "the successor" to make a deed where the officer making the sale had absconded, or where he was unable to make it. Under this statute it was necessary to do it, where "the term of service" of the officer making the sale had expired. Now, I can see no more impropriety in permitting a 59] *sheriff who has sold land upon execution, to make a deed of conveyance after his term of service has expired, than in permitting him to sell on vendi. or otherwise under similar circumstances, and it would seem to me that, under the statute of 1822, it would have been most proper to issue the vendi. to the sheriff in office on the day of its date. Whether this would be absolutely necessary I do not undertake to say. This statute, however, has nothing to do with the present case. The land was sold under the law of 1810. These statutes are referred to merely for the purpose of showing that up to the year 1822, the legislature in their frequent legislation upon the subject of executions, have said nothing which would lead to uniform practice in the direction of writs of vendi. It was left to the discretion of the courts. And, even after the statute of 1812 above referred to, the practice continued the same as before, different in different parts of the state. To remedy this evil, the legislature, in enacting the law "defining the duties of sheriffs," etc., passed February 25, 1824, provided, among other things, in section 8, that "no venditioni exponas shall hereafter be directed to, or executed by, any sheriff whose term of office may' have expired," etc. Since that law the practice has been uniform throughout the state; before it was variant. From all the consideration we have given the subject, we are not prepared to say that the vendi. of the 5th of September was improperly issued, in being directed to the late sheriff, or that it was improperly executed, in being executed by the officer to whom it was directed.

The question next to be considered is, whether the court of common pleas erred in setting aside and vacating the amended return. It does not seem to be controvorted that a sheriff or other officer may, by leave of the court, amend his return? Nothing is more common in practice, and no injury is thereby done to the parties litigant, so long as the return, when amended, is consistent with truth. If a false return is made, the party injured has

Fowble v. Rayberg and Taylor.

a remedy by action. The order of the court of common pleas vacating the amended return, in the present instance, is complained of, not so much because such order was made, but because it was made after so great a length of time had elapsed. Although the order was to set aside and vacate an amended return, or *more properly speaking, to vacate an order previously made [60 by the same court, thereby reinstating the return originally made by the officer executing the process, still I do not perceive that it materially varies from ordinary amendments of returns.

I know of no law fixing upon any length of time as an absolute bar to motions for leave to make such amendments. The amendment may be made after the term of office has expired. 6 Bac. 160. In the state of New York it has been decided that after a lapse of twenty years, no judicial proceedings whatever ought to be set aside for irregularity. 7 Johns. 556. In South Carolina it has been said that it would be dangerous to set aside such proceedings twelve years after judgment. 1 Bay, 338. Which of these rules shall we adopt? If we take the New York rule, then the motion was made and the vacating order entered within time; if the South Carolina rule, then it was not within time. The opinions of the courts of other states are entitled to much consideration, and will, I trust, by this court, always be treated with respect. But before they can be received as conclusive upon us upon a question of practice, there must be a conformity of decision in the courts of the different states whose practice is referred to. Now the decisions above referred to, and they are cited by the counsel for the plaintiff, do not show this uniformity. Motions to set aside any judicial proceeding, or to amend any return, should undoubtedly be made within reasonable time. In New York, if it be done within twenty years it is well; but in South Carolina, it must be done within twelve. The inference I draw from this diversity is, that there is no positive rule of law upon the subject. Much, nay everything, must be left to the sound discretion of the court. A court should unquestionably be more cautious in permitting an amendment, after a great lapse of time, than where the transactions are fresh, and the circumstances may be supposed to be more fully within the recollection of the officer making the amendment. It can not but be seen, however, that the present case is somewhat peculiar in its circumstances. The sheriff had returned that he had sold the land and made the money. This return remained

Fowble v. Rayberg and Taylor.

upon the execution during his lifetime, but after his death it was 61] amended at the suggestion of his administrators. *If the court were satisfied that the order for this amendment was improperly made, it was within their discretion to vacate it, thereby leaving the return upon the execution as it was left by the officer to whom it was directed, and by whom it was executed. The question now to be considered, is not whether this court, under similar circumstances, would have done as was done by the court of common pleas, but whether that court, in the exercise of their discretionary power upon this subject, have violated any principle of law. We do not perceive that they have.

It is further alleged, that the court erred in ordering a deed. after the lapse of fifteen years from the time of the sale.

The law "regulating executions," passed January 19, 1802, and which has already been referred to, provided that if any sheriff' or other officer, having sold land, should "abscond, or be rendered unable, by death or otherwise, to make a deed of conveyance for the same," etc., then "the successor" of such sheriff or other officer might, under the order of the court from which the execution issued, make a deed to the purchaser, which should, to all intents, be equally valid as if made by the officer making the sale. The same principle has been contained in all the statutes upon the same subject, and there has been no less than seven of them, besides amendatory acts, from that time to the present. In the present case the execution was issued from the court of common pleas. It was proven, to the satisfaction of that court, that sale was "fairly and legally made," and that the vendee "had paid the purchase money." The fact, that the purchase money had been paid, constituted, on the part of Walker, a strong equitable claim, and the proof introduced was such as, in contemplation of the statute, would require of the court, in ordinary cases, to make the order. It certainly is not a little extraordinary that the business should have rested for so great a length of time. Nothing seems to have been done in it from 1812 to 1827. This circumstance would undoubtedly make the court more astute in the examination of the testimony; still, as the statute makes no provision as to the time within which the order shall be made, we can not say that this. circumstance, of itself, would be sufficient to render the order, when made, illegal.

62] *It has been urged in argument, that the deed thus to be

Fowble v. Rayberg and Taylor.

made should be made by the immediate successor of the officer making sale. But is this a fair construction of the statutes on the subject? To the court it would seem that it is not. It is true that all the statutes "regulating executions," up to the year 1822, speak of "the successor" as the person who shall make the deed in case the officer making the sale shall be unable to make it. The definite article, "the" being made use of, perhaps the strict grammatical construction would confine the power of making deeds to the immediate successor of the officer making the sale. Courts, however, do not seek principally for grammatical construction in ascertaining the meaning of statutes. It is their duty to carry into effect the intention of the enacting power, although, in so doing, the rules of grammar may be violated. To arrive at this intention, perhaps there is no rule of more generai application than this: to "consider the old law, the mischief, and the remedy." Suppose we apply this rule to the statute of January 19, 1822. I speak of this statute, because it is the first in our statute books which authorizes "the successor" to make deeds where his prede. cessor had made sale, and because since that time there has been no change upon the subject, certainly not before 1822. What then was the old law when this statute was enacted? The officer who made the sale must make the deed. What was the mischief? The officer who made the sale might "abscond, or be rendered unable, by death or otherwise," to make the deed; consequently the purchaser must lose the benefit of the purchase, and if the purchase money had been paid, must also lose the purchase money. What is the remedy? In case of the inability of the officer who made the sale to make the deed, any individual, who may subsequently hold the same office, may, under the direction of the court from which the execution issued, make the necessary deed and conveyance, which shall have the same effect, "to all intents," as if made by the officer making the sale. Adopt the construction contended for by the plaintiff's counsel and the mischief resulting from the old law would be but partially remedied. The immediate "successor" of the officer making the sale, might, as well as his predecessor, be "rendered unable, by death or otherwise," to make a deed. He might, in fact, vacate his office before a term of [63 the court from which the execution issued should intervene, in which the necessary order could be made. The intention of the legislature must have been to secure to the purchaser the benefit

Fowble v. Walker.

of his purchase; and this intention could not, in every case, be carried into effect were the construction insisted upon by the counsel for the plaintiff to prevail. However it might have been under the laws previous to 1822, the act of the 1st February of that year, "regulating judgments and executions," places the question beyond a doubt. Section 13 of that act provides, that if the officer making the sale shall be incapable of making a deed, then "it shall be lawful for any succeeding sheriff or other officer to do it. 20 Stat. Laws, 74. The same phraseology is used in the statute of February 4, 1824 (22 Stat. Laws, 113), under which statute the deed in the present case was ordered.

It has been further urged, that the vendi., and the proceedings under the same, were irregular, inasmuch as there was no indorsement of nulla bona upon the writ of fi. fa. Had this been the fact, a difficult question might have been presented. But we are satisfied, from a careful examination of the record in this case, no question is presented as to the necessity of such indorsement. Counsel have been led into an error by confounding the case of Fowble v. Walker, decided at the present special session, with this In that case, it is true, it was proposed to show that there was no indorsement of nulla bona, but the court of common pleas rejected the evidence, as coming in at too late a period. In the present case, it does not appear whether such indorsement was or was not made.

case.

Upon the whole, we are not prepared to say that there is any. thing erroneous in the decision of the court of common pleas; the same must therefore be affirmed.

64]

*JACOB FOWBLE v. CHRISTOPHER WALKER.

Party in court, when an order is made affecting his interest, and making no objection, can not, of right, be heard to make a motion to rescind such order. He must show some reason for his negligence, addressed to the sound discretion of the court.

THIS case came before the court in Hamilton county, and was adjourned for decision at this special session. The record discloses the following facts: On September 21, 1808, Rayberg and Taylor