
    Berry vs. Griffith.
    June, 1828.
    
    
      Á sheriff has a right, and it is his duty, in due time to correct his return to a fieri facias, so as to make it conform to the truth of the fact, whatever that may be, and to give it effect and legal operation.
    It is not true, that land when taken in execution, must be described in the schedule returned with the writ and advertisement, of its intended sale, with technical minuteness.
    A sheriff cannot sell what has not been levied upon under the Ji. fa. but a general description in the schedule returned with the writ, and in the advertisement of sale, is sufficient.
    The return should regular!y, for the security of purchasers, describe the premises with precision; but it is enough, if the description be such, as that the property may be clearly identified.
    A sheriff's return to a fieri facias, that he had laid it on all that part of the tract of land lying in M county, called C, which was devised to the said 15, (the defendant in the writ,) by his father R, to the value of, &c. that after having given due and public notice, of the time, place, manner, terms, and cause of sale, he did on, &.c. expose to sale the said part of the said tract of land which lies on the N W side of the public road leading from R, in Mcounty, to B, containing 242 acres, and that G, then and there became the highest bidder and purchaser of the said last mentioned part of the tract or parcel of land, for the sum of $2,000, which he had paid to the sheriff, shows a valid sale by the sheriff.
    A sheriff may divide, and sell a part of the premises levied upon, and advertised, and where that will satisfy the debt, he ought to sell no more.
    Appeal from Montgomery County Court. This was an action of trespass q. c. f. — for breaking and entering the close of the plaintiff, (the appellant,) called Charles and Benjamin. The defendant, (the appellee,) pleaded not guilty, and issue was joined.
    At the trial the plaintiff proved by a competent witness, that he, the plaintiff, had held the land and premises in the declaration mentioned, under the will of his father, always since the death oí his father, until the time of the sale hereinafter mentioned. And the plaintiff read in evidence the will of his-father, Richard Berry, and proved the same. By which will, dated the 26th of August 1818, the testator devised to his son Elisha D. Berry, (the plaintiff,) and his heirs, all the remainder of his tract of land called The Charles and Benjamin, not devised to his daughter Deborah. The will was proved on the 30th of November 1819. The plaintiff further proved by a competent witness, that the defendant had, after the purchase and sale by the sheriff, as hereinafter stated, directed one John Thomas the 3d, to cut timber trees on that part of said land, so before sold, as mentioned and described in ihe return of the sheriff hereinafter stated, and that the said Thomas had accordingly cut and removed them therefrom. The defendant, for the purpose of proving the title and possession of the said land in himself, produced and offered to read the following records and papers, viz. A record of a judgment recovered in Montgomery county court in March 1820, in the name of William Willson, and Anna Maria Willson, his wife, against Elisha D. Berry, for $134 88-J debt, $300 damages and costs. The damages to be released on payment of interest on the debt, from the 19th of June 1816. This judgment was superseded by confession of judgment entered into by Elisha D. Berry, with Jannaro S. Farre and Alexander Young, on the 22d of February 1831, before one of the Associate Justices of the orphans court of the said county. Upon this confession of judgment a writ of fieri facias issued on the 4th of March 1822, against Berry, and his sureties. The sheriff returned the fieri facias, that he had laid it on all that part of the tract of land lying in Montgomery county, called Charles and Benjamin, which was devised to the said Elisha D. Berry by his father Richard Berry, to the value of $6,000. That after having. given due and public notice of' the time, place, manner, terms, and cause of sale, he did on the 13th of August 1822, expose to sale the said part of the said tract of land which lies on the N W side of'the public road leading-from Rockville, in Mont~ gomery county, to the city of Baltimore, supposed to contain 350 acres more or less, but found on an accurate survey thereof,. by *he Surveyor of Montgomery county, to contain 2421 acres, as will appear by the plot annexed and returned. That, at the said sale Henry B. Griffith and Bichará H Griffith, then and there became the highest bidders and purchasers of the said last mentioned part of a tract or parcel of land, at and for the sum of $2,000, and which sum they had paid to the sheriff. Berry moved the court to quash the fieri, facias, assigning certain reasons, which motion the court overruled. The defendant also proved by several competent witnesses, that the land in the declaration mentioned, is the same land which is men, tioned in the return of the sheriff above, and that the said land was sold by the sheriff of Montgomery county at public sale, and that the defendant became the purchaser thereof, as stated in the amended return of said sheriff. That the plaintiff was present at the said sale, and that it was at his request that the part of the land taken under the said execution, and so sold by the. sheriff, was exposed to sale. That the plaintiff made no objection to the said sale, and that the defendant and Henry B. Griffith, then paid the purchase money to the sheriff, and the plaintiff thereupon paid a balance remaining unsatisfied of the executions in his hands of nine or ten dollars to the sheriff. That the day after the said sale the defendant, and his co-purchaser Henry B. Griffith, engaged one Washington Owen to enter upon the said land, (there being-no bouse or enclosure thereon,) and take charge of the same, and directed him to authorise one John Thomas to cut down wood, and enclose the fields on the said land, which he did. And that the said land had always been held, and considered as a part of the dwelling plantation of the plaintiff, until the said sale. That after the said Thomas had cut down the said trees, the plaintiff called upon him to know by what authority he had so cut them, and Thomas replied on the authority of the defendant. The plaintiff replied that was all he wanted to know. The witness thinks Thomas went on to cut some trees after the plaintiff had so called upon him, and carried those he had previously cut down, to the field which he enclosed with them on said land. That the said Thomas did enclose and cultivated said fields, and ftiat the defendant, and the said Henry B. Griffith, nave continued in such possession of said land so purchased, ever since. But the said witnesses proved that they had no knowledge, except what is above stated, of the defendant or Henry B. Griffith, (his co-purchaser,) having been in possession of said land, and that they supposed he had possession in consequence of his authority given to said Thomas to cut wood. The said Thomas had, before the said sale, by the leave of the plaintiff, taken down wood from said land ior firewood. And the plaintiff further offered the record of an action of ejectment brought by the defendant against the plaintiff. Tiffs record sets forth an action of ejectment brought by Henry B. Griffith and Richard H Griffith’s lessee, against Elisha D. Berry, on the 23d of December 1822, for a tract of land called Charles and Benjamin, as described in the sheriff’s return before mentioned, containing 250 acres. Which said action was entered, on the 10th of November 1825, “off by plaintiffs.” The plaintiff further proved by Richard Butt, a competent witness, and the deputy sheriff who made the sale, that there was land included in the sheriff’s amended return which was not sold under the said execution to the defendant, but that the land on which the alleged trespass is said to have been committed, was sold as aforesaid. And the defendant proved by four competent witnesses, that all the land mentioned in the sheriff’s return was sold as stated in the said return; and produced the receipt of said Butt to prove the same fact: “Received, August 13th, 1822, from Henry B. Griffith and Richard H. Griffith, two thousand dollars, for all the land lying on the north west side of the Baltimore road, called Charles and Benjamin, late the property of Elisha D. Berry, sold by virtue of a writ of venditioni exponas, at the suit of William Scott, and a writ of fi. fa. at the suit of William Willson, and Jinna Maria his wife.
    E E Rich’d. Butt, for
    
      William Clements, Shff of Montgomery County.”
    And the plaintiff, in order to prove the irregularity of said salé, offered the following papers marked B, one of which is admitted to be the inventory and appraisement, one the advertisement of sale, and the other a return which the sheriff had prepared and filed, and which was supplied by the amended return offered by the defendant, and which are as follow, viz.* The appraisement was of “pari of a tract of land called Charles and Benjamin, containing 500 acres of land more or less, valued at $6,000.” The advertisement dated the 23d of July-1822, (certified to have been published in the Rockville True American for 21 days before the day of sale,) stated that the sale would be at the residence of Elisha D. Berry on the 13th of August then next for cash only, the following property, to wit: All the right, title, interest and estate, of Elisha D. Berry, of, in and to, part of a tract of land called Charles and Benjamin, containing 500 acres more or less, taken by virtue of a writ of fi. fa. issued from Montgomery county court, at the suit of W)«. Willson and wife, &c. A list of sales of the lands, &e, of Elisha I). Berry, sold under two writs of fi. fa. one at the suit of William Scott, and the other at the suit of William Willson and wife, the 13th of August 1822, “'part of a tract of land called Charles and Benjamin, lying on the N W side of the Baltimore road, containing 250 acres more or less — -Jno. Thomas, 3d. (To be sold in 30 min. if hot complied with,)
    $2405
    2d. Deborah D. Berry (do. in 10 min. do.) 2100
    3d. II. B. fy R. II. Griffith (do. 10 do. Pd. by II. B. fy R. II. G.) 2000”
    Upon the evidence aforesaid the plaintiff prayed the court to instruct the jury that the defendant and Henry B. Griffith derived no title to' the said land under the said sale, and that the plaintiff is entitled to recover. Which instruction, so as aforesaid prayed, the Court [Kilgour and Wilkinson, A. J.] refused to give to the jury. The plaintiff excepted; and the verdict and judgment being for the defendant, the plaintiff appeal-' ed to this court.
    The cause was argued before Buchanan, Ch. J. and Earle, and Archer, J.
    
      Magruder, for the Appellant,
    contended, that the court below erred in refusing the instruction to the jury as asked for by the plaintiff — 1. Because the plaintiff’s possession of the land entitled him to recover upon the evidence in the causey 2. Because the proceedings of the sheriff under the fieri facias 
      in the record produced by the defendant, and the sale made by him of the land upon which the trespass was committed, were illegal and void. If the sheriff’s seizure of property is not correct, he cannot afterwards make it correct. He must advertise and sell the property in conformity to his seizure. He cannot, if he advertised that the whole of a tract of land was to be sold, sell only a part of the tract. He cited Sheldon v Soper, 14 Johns. Rep. 352. Jackson v Stricker, 1 Johns. Cas. 284.
    
      F. S. Key, for the Appellee.
    Can it be improper for a sheriff to sell a part of a tract of land, instead of the whole tract, when by a sale of a part the debt will be made? Why cannot the sheriff accommodafe purchasers by dividing the tract, and selling it in parcels? Suppose a sheriff levies a writ of fieri facias on personal property, and advertises to sell the whole, can he not sell only a part, and in parcels, if by such sale he raises a sum sufficient to discharge ttie debt? In this case the land sold lay on the N W side of the road. The whole tract was divided into two parts by a tract running in between the whole traet.
    
      Magruder, in reply.
    The sheriff’s original return was incorrect, and he had no right afterwards to correct it, by stating in his amended return expressions which were not used in the schedule returned by him. The schedule returned with the writ, and the advertisement of the land to be sold, differ from the expressions used in the special return as amended.
   Buchanan, Ch. J.

delivered the opinion of the court. This was an action of trespass for cutting down trees in a close, alleged to be the close of the appellant, who was the plaintiff below.

The appellant claims title to the land on which the trees were cut, under a devise from his father; and the defendant rests his defence upon a purchase of the same premises by himself and Henry B. Griffith, from the sheriff of Montgomery county, at a sale by auction, in virtue of a fieri facias regularly sued out of the Montgomery county court. And the s le question presented to us in argument is, whether the sale made by the sheriff of the land on which the trespass is supposed to have been committed was a valid sale?

To prove that the sale was irregular and void, the appellant offered in evidence the inventory and appraisement, in which the land upon which the fieri facias was levied, is described as “part of a tract of land called Charles and Benjamin, containing five hundred acres of land more or less,” valued at #6,000. The sheriff’s advertisement of sale, which is of “all the right, title, interest and estate, of the said Elisha D. Berry, of, in and to, part of a tract, of land called Charles and Benjamin, containing five hundred acres more or less,” both of them stating it to be taken by virtue of a writ of fieri facias at the suit of William Willson, and Anna Maria his wife. And also a paper, which it is admitted was prepared and filed by the sheriff as his return to the fieri facias, and in which the land sold is described as “part of a tract of land called Charles and Benjamin, lying on the north west side of the Baltimore road, containing two hundred and fifty acres more or less.’*' ¡And all of them describing it as the land of Elisha 2). Berry„ And the defendant produced a corrected return by the sheriff, of the fieri facias, on the return day of the writ. That correeted return is full and special, and sufficiently describes the land sold, and entirely supersedes the paper that was first prepared by the sheriff as his return; which paper, if admitted to be imperfect as a return, cannot avail the appellant, as it will rot be denied, that a sheriff has a right, in due time, to eor•ect his return to a fieri facias, so as to make it conform to ;he truth of the fact, whatever that may be, and to give it effect and legal operation; and indeed, it is his duty to do so,, lot only as respects himself, but all others concerned, and pur¡Lasers not less than others, who commit themselves to the acuracy and integrity of sheriffs.

In this ease it is not denied, that the correction was in time; mr is it contended, that the return, standing alone, is upon the ice of it defective, but it is supposed that there are discrepancies etween the return, the inventory and appraisement, and the dvertisement of sale, which vitiate the whole proceedings, and Rider the sale void. With respect to certainty in the descriplion of the property, we do not perceive the fatal discrepancies that are supposed to exist. The corrected return describes the land levied upon, as the property of Elisha D. Berry, to be “all that part of the tract of land called Charles and. Benjamin, which was devised to Elisha D. Berry by his father,” with a reference to the will, and states the amount, to which it was appraised, to be #6,000, referring also to the schedule or inventory. Between the description then of the land levied upon, as given in the return, and the inventory and appraisement, there is no discrepancy, but the land clearly appears to be identical. In the latter, it is described as part of a tract of land called Charles and Benjamin, the property of Elisha D. Berry, containing five hundred acres more or less, and appraised to #6,000. In the former, as all that part of the tract of land called Charles and Benjamin, belonging to Elisha D. Berry, which was devised to him by his father, stating the amount of the appraised value to be the same as that set out in the inventory and appraisement, and showing, by the reference to that paper, (which is made a part of the return,) the quantity of acres to be the same. The only difference being this, that the return professes to show in what manner Berry acquired title, by reference to his father’s will, which the inventory does not. But the two papers manifestly show the land devised to Berry by his father, and the land levied on to be the same; and the same may be said of the advertisement of sale, which is of all the.right, title, interest and estate, of Elisha D. Berry, of, in and to, part of a tract of land called Charles and Benjamin, containing five hundred acres more or less, taken by virtue of a writ of fieri facias, at the suit of William Willson and wife. This, paper does not, to be sure, set out the means by which Berry acquired title, but it desciibes the land seized under the fieri facias, as the property of Berry, by its name and contents, as it is described in the other two papers. And it is difficult to wink so hard, as not to see, that they all manifestly relate to the same land, and describe it with sufficient certainty. But it is not true, that lands taken in execution, must be described in the schedule and advertisement of sale, with technical minuteness. If it were so, it would perhaps be found that there are few titles in the state, acquired by purchase at sheriffs sales, that might not be shaken. The sheriff cannot sell what has not been levied upon, but a general description in the shedule and advertisement of sale is sufficient. The return should regularly, for the security of purchasers, describe the premises with precision; but it is enough if the description be such as that the property sold may bo clearly identified. In this case, the land sold was a part of the premises levied upon and advertised, and that part is described in the sheriff’s return, in a manner by which it may be sufficiently known and ascertained. But it is contended, that the sale was void, because a part only of the premises seized and advertised was sold, on the ground that the sheriff was not legally authorised to sell a part only, but was bound to sell the whole of the land levied upon. We cannot, however, assent to the proposition. Sheriffs, it is believed, are already sufficiently disposed to sell more than is necessary; and it would be pregnant with mischief to the community, if a sheriff, who lays an execution for $100, On a tract of land worth $10,000, should be held to be obliged to sell the entire tract, and could not sell such part as might be sufficient to discharge the debt. On the contrary, we think, that in such a case the sheriff is not only authorised to lay off and sell such a proportion of the land as may be found sufficient to satisfy the debt, but that he ought to do so, and not to sacrifice at auction more than may be found necessary. Or suppose a sheriff having taken in execution an entire tract of land, finds it will sell to a greater advantage if divided and sold in lots, than if sold altogether; and accordingly lays it off into lots, and sells them separately to different persons; would it, in such a cáse be said, that the sale of each lot would be void, because the sale of neither was a sale of the whole? And yet the doctrine contended for here, if maintained, would lead to that length.

We ean perceive nothing wrong in the sale and return in this case, and affirm the judgment.

JUDGMENT affirmed.  