
    *The Ohio Life Insurance and Trust Company and others v. Urbana Insurance Company and others.
    The return of a sheriff, as to the description of property levied upon, can not be amended so as to prejudice other liens intervening between the time of levy, and the date of the amendment.
    If an amendment be made, the lien will only operate as to third persons from the date of the amendment.
    An execution in favor of A. was levied upon the northwest quarter of section 35, but in the sheriff’s return it was described as being levied on the southwest quarter of that section. An execution in favor of B. was afterward levied upon the same land, and correctly described in the sheriff’s return.
    Held, that the return upon the execution of A. can not be amended so as to affeot the priority of B.’s lien.
    This is a bill in chancery from Logan county, the object of which is to establish priorities of lien, and have distribution of the proceeds of a master’s sale of mortgaged premises.
    From the papers in the case, these facts appear:
    James M. Workman, prior to the year 1838, owned in fee .simple the northwest quarter of section 35, township 3, range 14, subject to a mortgage of §400, made to the Ohio Life Insurance and Trust Company.
    Judgments were recovered against Workman in the following order:
    1. Strong and Blachley, July 3, 1838.
    2. Urbana Insurance Company, October 16; 1838.
    3. Executor of Skiles, July 3, 1839.
    4. Urbana Insurance Company, October 23, 1839.
    Executions issued on these judgments, and were returned levied, as follows:
    1. Urbana Insurance Company (2), on the northwest quarter of section 35, January 14, 1840.
    2. Urbana Insurance Company (4), on the northwest quarter of section 35, January 14, 1840.
    3. Strong et al. (1), southwest quarter of section 35, June 9,1840. *4. Executors of Skiles (3), southwest quarter of section 35, June 12, 1840.
    At April term, 1841, Strong and Blachley procured an order of court for the sheriff to amend his return, and the sheriff amended tho same by erasing the word southwest, and inserting the word northwest, and like erasures arid alterations were made in the appraisement and the printed advertisements.
    At the April term, 1843, the executors of Skiles procured an order for amendment, which was made in like manner.
    On all the levies, numerous writs of sale were issued, and largo bills of costs incurred, prior to the orders of amendments; and the amendments were made without notice to any parties whatever.
    The question is, as to the distribution among these judgment creditors, alter satisfaction of the sum due on the mortgage.
    B. Stanton, for the executors of Skiles:
    The mortgage of the Ohio Life Insurance and Trust Company is the eldest lien upon the lands sold by the master, and their original claim is entitled to preference over all other creditors in the distribution of the purchase money.
    The bill of review is a separate and distinct proceeding, and the mortgage lien does not attach to the costs adjudged against the plaintiff in review. The lien upon the lands for costs originated with and is founded upon the decree. This case, therefore, must he postponed to all-others in the distribution.
    
      The principal question in the case arises out of the amendment, of the sheriff’s return to the executions in the cases of the executors of Skiles, and Strong and Blachly, survivors, etc.
    If the court had power to authorize these amendments, these-cases are entitled to precedence of the case of the Urbana and Champaign Mutual Insurance Company, otherwise they are not.
    The power of courts to amend their process, and to authorize-the amendment of the returns of their officers, according to the truth, I had supposed was too well established to admit *of any controversy. Questions of this description are always addressód to the sound discretion of the court, and may be granted- or refused, without subjecting the decisions to review, or reversal, by an appellate court. Though the appellate court may think the* discretion of the inferior court has been injudiciously exercised, the decision is, nevertheless, final and conclusive, unless the inferior court has transcended its powers, or violated some established principle of law.
    I would refer the court to the following authorities, in support of the power exercised by the court in this case. Fowble v. Reyburg et al., 4 Ohio, 57; McIntire v. Rowan, 3 Johns. 144; Williams v. Rogers, 5 Johns. 163; Cramer v. Van Alstyn, 9 Johns. 385; Thatcher v. Miller, 11 Mass. 413; Smith v. Daniel et al., 3 Murph. (N. C.) 128; Sawyer v. Baker et al., 3 Greenl. (Maine,) 29; Rucker v. Harrison, 6 Munf. (Va.) 181.
    It is always presumed that an amendment is made according to-the truth. 1. Because it is made by a sworn officer, under the responsibility of his official oath. 2. Because the court will not grant leave to amend, unless the party, shows, by proof of some-description, that the proposed amendment is true in point of fact, and is necessary to promote the ends of justice.
    If it is not true, the officer is liable to the party injured for a false return; and this is the remedy of a party who is injured by an amendment which is not true. But in this case, no room is left-for doubt about the truth of the return as amended. The depositions of the sheriff, and one of the appraisers, prove that the levy was in fact made upon the northwest quarter, that the northwest quarter was appraised, and that the entry on the executions, that-the levy was on the southwest quarter, was made by mistake, and afterward corrected by leave of the court, according to the truth-In fact, there is no pretense that the judgment debtor owned the-southwest quarter, or any other lands, except the lands sold by •the master; and there can be no doubt but this is the land upon which all the parties wore seeking to charge their judgments.
    *1 suppose there can be no doubt about the effect of the amendment after it is legally and properly made. It places the party in the situation he would have been in if the original return had been correct. It restores to him. all that he has lost, or was liable to lose, by the mistake of the officer. The sole object •of an amendment is to cure that which was defective, and make it as though no defect had ever existed. The lien of the party as to other creditors commenced with his levy. If the levy was in fact made upon the right land, the lien created by it can not be .affected by any mistake in entering the levy on the execution. This entry of the levy on the execution is merely the evidence of the time, manner, etc., of making it. The fact itself can not be •changed, or its legal consequences affected, by any error which may have occurred in perpetuating the evidence of it. Other ■creditors are not injured by it; they are in the situation they would have been if no error had occurred. They are not in the ■situation of purchasers or mortgagees, without notice, who make •advances upon the faith of a public record, and who would be injured by the negligence of the officer or the party, if their title ■.should be overreached by an alteration of the record. Their debt existed at the time of the levy, and they must take their •phance with other creditors in securing a doubtful or desperate •claim from the property of a man in failing circumstances. It was their own fault that execution was not issued within the year ■from the date of their judgment, and they can not now be restored to what they have lost by their negligence by taking advantage •of a mistake in the officer.
    If amendments can not reach back, and place a party in the ■-situation he would have been in if no mistake had occurred, they .are useless. If this levy is not to be treated as a levy on the lands sold by the master till the amendment was made, the amendment is useless to us, as we might have set aside our levy, and commenced de novo, as well as to amend. At the last term of the Supreme Court in Logan county, Strong and Blaebly, survivors, etc., obtained leave to amend their judgment by striking out the name of a plaintiff, to make it conform *to the ■executions under which they claim in this cause. If they can avail themselves of this amendment, and overreach our lien, we suppose we can avail ourselves of the amendment to the sheriff’s return, and take precedence of the Urbana and Champaign Mutual Insurance Company; and if we are postponed to this, we take it for granted that Strong and Blachly will bo postponed to us.
    James & McNemar, for the Urbana Insurance Company:
    If the prior liens of the Urbana Insurance Company aro to be postponed, it must be by matter of strict law, and the alteration in the other liens sustained as amendments to prevent a failure of justice. The claim made by these creditors is not entitled to any special favor in a court of equity; and if any of the judgments have superior merits, those of the Urbana Insurance Company, which are shown to be for the purchase money of the land in question, would seem to have the preference.
    The mode of making the amendments in question, by a mutilation of the original entries, is very objectionable. The proper course would be by a reindorsement, reciting the order for correction, as shown in the case of Fowble v. Reyburg, 4 Ohio, 45. But by the sheriff’s statement on file, the court can see the time and manner of making the alteration.
    We do not deny the power of' courts to permit sheriffs to amend their returns, and even by parol evidence.; but it is not permitted whore the sheriff has omitted to make a return in writing, or where it would contradict a fact set forth in the return, or where the sheriff is a party. In these cases the power was improperly exercised, because there was no ambiguity in the levy, no apparent mistake, and nothing in any part of the proceeding to show that the northwest quarter was really taken, but misdescribed. There was nothing to amend by.
    In making a levy on land, the sheriff does not go upon the land, nor does' he, by any act of notoriety, show that he seizes *and appropriates the land to satisfy an execution. By simply writing and signing a return upon a writ, he creates a legal lien upon land anywhere within his county. Emerson v. Upton, 9 Pick. 170. “He should be bound, then, by the official stamp which he gives to his proceedings, there being no other guard or check upon him.” Ib. Theso lions were made at the sheriff’s office in Bellefontaine, and as they consisted simply of an indorsement on the writs, how can thoy be treated as acts> except by the language used at the time? They were certainly not levies on the northwest quarter of section 35, in the month of June, 1840; and as the levy exists only by force of the return, it follows that the northwest quarter was not bound by any levy in favor of Strong, or of Skiles, until the dates of the several alterations made by the sheriff, under the leave to amend. The date of the alterations being both more than one year from the rendition of their judgments, the elder liens of the Urbana Insurance Compavy became the better liens.
    The fact sworn to by one of the appraisers, that they wont onto the northwest quarter, and actually viewed and valued that quarter, and not the southwest quarter, can not affect the case. The appraisement is no part of the levy, and it can neither aid nor injure the sheriff’s return; at any rate, the sworn certificate of the appraisers shows that they valued the southwest quarter» Their valuation was subsequent to the sheriff’s act of levy, and they were not accompanied by him.
    We may concede that the sheriff may have thought he was levying on the land in question when he levied on the southwest quarter, but his intention is to be known only from his expression of it in his official return. The authorities cited by the complainants merely show that, in proper cases, the courts will make-amendments. It will be found on an examination of all the cases in which amendments of writs and of returns have been granted, that the effect of them, when any change has been made, has been limited to the parties to the suit in which the amendment was granted. The previously acquired ^rights of persons, not parties to a suit in which an amendment is made, can not be-affected by any such amendment.
    In Massachusetts, several cases are found in which this point has been so ruled, and from the cases it also appears that the fact of amendment, and the time of making it, are inquired into-in collateral proceedings. In Williams v. Brackett, 8 Mass. 240, it was decided that the sheriff can not be permitted, in a suit between other parties, to change his description of land in his-return of an attaobment'made by him in a former action, so as to make the description apply to other lands of the debtor.
    It has also been held (Putnam v. Hall, 3 Pick. 445) that the rights of a subsequently-attaching creditor will not be affected by the amendment of a mistake in the first attaching creditor’s writ,, though appearing manifestly on the face of the writ to have been •occasioned by a mere slip of the pen.
    The case of Emerson v. Upton, 9 Pick. 167, is very analogous to the one before the court. This case was a writ of entry to recover possession of a piece of land under the following facts:
    On May 23, 1826, the defendant, Emerson, had conveyed a piece of land to Stickney, and taken a mortgage for the purchase •money, which mortgage was not placed on record until May 22, ■1827. Tbo tenant, Upton, had sued Stickney for a debt at the common pleas for June, 1827, and the officer who served the writ returned, under date “of June 6, 1827,” that ho had attached the land of Stickney. At the September term of the common pleas, the officer, on motion and affidavit, had leave to amend his return, ■by substituting March for June as the date of his attachment. The tenant having obtained judgment against Stickney at the December term, 1827, took out execution, and had it levied within ■thirty days upon the land as Stickney’s property.
    The court decided that the amendment, carrying back the attachment to a date preceding the recording of the mortgage, should not prejudice a title acquired prior to the date of the •return as it stood before the amendment.
    *And in delivering the opinion, used this languago:
    “We do not interfere with the rights of the court of common pleas, to allow the officer to alter his return ; from the evidence on which the court acted, we presume they had sufficient ground to be satisfied that the attachment was made on the 6th of March. JBut they did not decide on the effect of the amendment, nor could they, so as to bind this court upon any question arising out of the proceedings, which might affect the rights of third persons. The whole matter appearing to us of record, the original return, and the subsequent amendment, we must decide upon the legal effect upon the plaintiff’s title, and we are satisfied that the title is not impaired by the attachment as proved. A different decision, we •apprehend, would be productive of great mischief. We do not find, in any of the cases cited, any intimation that an amendment of an officer’s return will have the operation to defeat the rights •of a third party, which would be valid without such an amendment. The cases from our own reports show only, that the return of an officer is conclusive, but what shall be considered his return, is not determined.”
    
      To the like effect, we cite Haven v. Swan, 14 Pick. 27; Johnson v. Hay, 17 Pick. 106; Hovey v. Wait, 17 Pick. 196.
   Birchard, J.

Without undertaking to decide whether or not the court rightly permitted the amendment, under the circumstances which appeared in proof, we find no difficulty in coming to a conclusion, that the amendments thus made, admitting them to be proper as between the judgment debtor and creditor, can not operate injuriously to any right lawlully acquired between thetimo of the levy and the amendment. It would be a bad precedent, in judicial proceedings, to permit one, not a party to a suit, without a day in court, to be deprived of an important right bj the decision of any motion whatever. A sound and correct exposition of the law will not permit it. The authorities cited by counsel seem to sustain this point.

*The liens acquired, therefore, by the four levies upon the northwest quarter of section 35, will take priority according to tho dates of each, the dates of each amendment to be regarded the date-of the levy, for all purposes of distribution.

Decree accordingly.  