
    Sanders' heirs vs. Norton.
    
    Motion.
    Error to the Pendleton Circuit; John Thimble, Judge.
    
      Constitutional law. Occupant laws. Sheriffs Sales of lands. Computation of time.
    
    April 24.
    
      Fieri facias on bond for improvement under the occupant laws, from Pendleton to Grant, and the Sanders’ lands sold, and purchased by the plaintiff Norton.
    Motion to quash the sale
   Judge Mills

delivered the Opinion of the Court.

[Absent Chief Justice Bibb.]

On a bond with security given by the plaintiffs, to secure a sum recovered for improvements, after judgment of eviction under the accupying claimant laws, in the county of Pendleton, the defendant in error issued his execution to the county of Grant, and there sold the lands of the plaintiffs in error, in satisfaction of the demand and became himself the purchaser.

The plaintiffs moved the court below to quash the executions and set aside this sale, relying on the grounds—

1st. That the execution Issued on a bond, having the force of a judgment, under the occupying claimant laws, and that the laws were unconstitutional, and all proceedings under them void.

2ndly. That the sale was irregularly executed by the sheriff.

Question of the validity of the occupant laws is not now open in this court for discussion: it is settled.

Erroneous acts of the sheriff, over which the plaintiff had no direct control, and which he did not induce. shall not affect his purchase more than in a stranger’s case.

If none of the defendants reside in the county where the judgment is rendered, the execution may go to any county where either of the debtors have lands or goods.

3dly. The execution was improperly issued from the county of Pendleton to Grant—because the execution could only go to Pendleton; or if it was sent-out of Pendleton, it could only goto Scott county, where the defendants in the execution or some of them, had large estates, consisting of chattels and slaves. The court below overruled the motion, and this writ of error is prosecuted.

As to the point whether the occupying claimant laws, or the proceedings under them, be or he not constitutional, this proceding appears to have been had under the act of 1812; and it has been so repeatedly settled by the decisions of this court, in some cases tacitly enforcing the provisions of the act, and in others expressly adjudicating upon the point, the question may be considered at rest, and no longer open to discussion, that this act is constitutional until some tribunal capable of com ruling has courts shall by its mandate set it again at large.

On the second point, it. is insisted on one side. that the irregularities of the sheriff, in making the sale, cannot vitiate it, as the sheriff is responsible for his illegal conduct, and the sale must stand. On the other side, it is contended that this doctrine only applies to cases where strangers purchase, and that the law is different where the purchase is made, by the plaintiff in the execution, and that he is bound by all the errors of the sheriff.

That purchasers generally are not affected by the erroneous or irregular proceedings of the officer making the sale, is, long since, well settled; and we conceive that the same principle applies to plaintiffs in executions, as to every erroneous act of the sheriff over which they have no direct control, and which they have not been instrumental in producing.

The acts of the plaintiff in the execution, are here relied on as affecting the sale, and if by his own acts, he had violated the law in conducting his execution, we should have no hesitation, for that reason, to affect his title as a purchaser, although a stranger, if he had purchased, would have an unimpeachable title.

Query: shall plaintiff send his execution to the county where a defendant has goods, or may it go to another county where there are lands only? —unless it appears plaintiffs had knowledge of the goods, the not arise against his purchase of the land.

The first act complained of. is, the emanation of the execution from the county of Pendleton, to the county of Grant, where the defendants did not reside. It is not pretended that the defendants in the "execution, resided in Pendleton; for their notice alleges that they are residents of Scott, and the proof shews that part of them and their surety reside iu gcott, and is silent as. to the residence of the rest ot them, but there is no grounds for presuming contrary to their own assertions, that they reside in Pendleton, where the judgment was. As they do not reside in Pendleton, the act or assembly permiting executions to go out of the county settles the question, 1 Dig. L. K. 484. It provides that where the defendant shall "remove himself or his effects, or shall reside out of the jurisdiction of the court where judgment was given,” the clerk shall sat the request of the party, for whom the judgment was rendered, issue any writ, of fierifacias, or other legal and judicial writ, and direct the same to the, sheriff of any county within this state, where defendant, or debtor, his goods or lands, may be found.” Now as the defendants did not reside in Pendleton, and their Hands” were found in Grant, it was within the letter of the act that the execution might go there.

But it is insisted that, although lands were found in Grant, personal estate and slaves, existed in Scott, and that the plaintiff in the execution, was bound to send the execution where these commadities could be first sold, as the law has postponed the lands of his debtor to other articles. Whether in making his election, as to the county, to which the execution should be sent, the plaintiff was restricted to that where the personal estate lay, we need not enquire. For we are satisfied he could not be bound to send the execution to scared out the personal estate, unless he knew where it was; and there is a failure in the proof, to shew that the plaintiff were possessed that, knowledge. It is shown that the estates of the defendants who resided in Scott were ample, as well as that of their surety, and that the surety bad been a man in public life, well known in the country; but there is no proof which brings the knowledge of either his residence or estate home the plaintiff in the execution.

Advertisement of sheriff's sale of land on the 9th, a court day, to sell on the 19th, is ten days within the statute, and sufficient- one day, that of posting up the notice, or that of making the sale, but not both, are excluded

Twenty days notice of the sale of chatels, but ten only in case of lands. Land must be advertised on court day.

The next enquiry is into the acts of the sheriff. Here it seems the seizure was on the 7th of June, 1823; the county court of Grant came on the 9th, and the sale was executed on the 19th of the same month, and if we presume that the sheriff gave notice on the 9th being his court day, (which we are bound to presume in favor of the, acts of the officer) there was a period of ten days, between the notice ami the sale; counting one of the days inclusive, and the other exclusive, which is the well known rule in computing any given number of days; and the act of assembly, regulating the sale of lands, 1 Dig. L. K. 515, expressly directs the sale to he made in not less than ten nor more than twenty days, after the notice on the court day. The sheriff therefore, cannot be convicted of too great haste between the notice and sale; and if the sheriff has committed no error, the plaintiff in the execution cannot he charged with any, even if it be conceded that lie would bo accountable for such errors of the sheriff, which is very problematical, although he be a purchaser, unless he was somehow instrumental in procuring the commission of such errors or irregularities.

But it is insisted that there was not sufficient time given between the seizure and sale, the first being on the 7th and the latter on the 19th of the month. And it is insisted that as the law gives twenty days between the seizure and sale of of goods and chattels 1 Dig. L. K. 486; the same time ought to be given in the case of lands. To this we reply that this law speaks expressly of goods and chattels, excluding lands, and that the laws directing the sales of lands, contain no such provision, and ought to be construed as a system sui generis, as far as can conveniently be done, consistent with the provisions of other laws regulating sales by execution. We therefore perceive no irregularities or improprieties in this sale for which it ought to he set aside, and the judgment on the court below overruling the. motion must be affirmed without, costs.

Petition for Rehearing by

J. HAGGIN, ESQ.

In this case the execution from a different circuit, was delivered to the sheriff on the 7th, advertised on the 9th being the court day, and the sale made on the 19th. All tinder the immediate superintendance of the plaintiff. who become the purchaser, for a sort”, and without notice to the defendants, it is said that the letter of the law has been observed, but surely its analogies have been outraged. Could the legislature intend to afford greater indulgencies to the debtor, whose personalty was taken under execution, than the defendant whose inheritance. was about to be sacrificed: yet twenty days are given the former, after levy. Is it probable that when they were providing for the creditor, whose debtor lived in a different county, that it was intended to subject the estate otherwise than if he had lived in the same county? Might it not be fairly inferred, that it designed to give the unqualified direction of bis execution only to the plaintiffs. in called of removal by defendant, after suit, and whose conduct in that respect had prejudiced or might mar the prospects of his creditor?

I will not detain the court, however in the construction of the sections which direct the process: well recollecting, that i formerly labored in vain, and that it was not until an abler pen, had treated of if. that the opinion was so changed, a.s to constrain the creditor to the extent avowed by the present; opinion.

With due deference, however. I would suggest that such precipitancy and co-operation, between the plaintiff and the sheriff, does strongly indicate something of sinister intent, which would justify a cancelment of the transaction. Yet fraud is odious. I know, and it may be more just to pass over those. circumstances; and even to presume that the defendants in the ejectment, who had undergone a protracted litigation for their land, and for their improvements, were still ignorant of the residence in their adversaries, although in a county not distant, and of some distinction, than to impute to there dishonest purposes. On this subject I would not dwell, because I am every day admonished how difficult it is to obtain a corresponding sentiment, touching matters of fact, where the record may justify a diversity of inference.

My desire at present is chiefly, to draw the attention of this honorable court, to tire time between the court day and the sale. Here there can be no dispute about facts. The court was held on the 9th, and the sale took place on the 19th. Ten days notice was given, if the court day be included in the computation—otherwise only nine. This act is said to be sui generis,—and its own terms must therefore decide the question. It provides that the officer shall give not less than ten, nor more than twenty days notice, from the court, day on which the notice was given ” The words of the statute exclude the court day from the computation. This is the plain and ordinary import of the word from. So acknowledged without exception, and never departed from, but under groat necessity, where the courts of law have qualified the literal expression, to prevent a failure or forfeiture of right. In the argument this rule was merely intimated, I did not doubt that it would be at once recognized. Insomuch that although, the word from is frequent in the books, particularly in our own reports, I am inconscious of a dictum, that.it should be construed as inclusive.

They are all in admission, as I believe, that it excludes, agreeably to its proper signification, and in conformity with this construction, are the authorities in the law,

“Thus it is” says Comyn, vol. 4 page 54, 98: “ if a leas? be to commence from the day of the date, the day after the date it begins.” “So if it be a date, for it is as a the date Coke Lit. p. 46; (b.) “ If a lease be made the 26th of May, to have and to hold far twenty years from the date, or from the day of the date, it shall begin on the 27th day of May.” If it be from the malting thereof or from henceforth. it shall begin on tbs day on which it is delivered, " But if it be a the confections, then it shall begin on the next day.” Baym. p. 81: “ when the cumputation is to be made from an act dono, the day on which the act was done, must he included” but where the computation is to be made, from the day and not from the act, there the day is to be excluded by the express words of the parties.” And the eases are again given of a lease, a die datus or a confectionis. The former excludes, the latter includes the day. The same reports, 430, in a suit opona policy insuring the life of A, for one year from the date of the policy. The day was excluded. So in Clayton’s case 5th Co. 1 a the same construction is maintained. Other authorities are to be found in corroboration. But surely mope can hardly be requested.

The rule is impressed upon every student, as comperting with the meaning of the terms and the doctrine of the law. Kxccpt that some doubts have been entertained how far a data and a die datu, may differ — a difference imputable to the different import of the word date in law. in some instances it is applied to the delivery of the deed, and sometimes to the day expressed as that upon which the deed was made. When the words, from the date, are held to relate to the time of delivery, they are equivalent to a confectionis, and where they, were applied to the day expressed on the instrument, a datu is equivalent to a die datu, and excludes. This under stood, from Coke down, this rule, so far as lean find any thing in the hooks, has been sanctioned. I have even been induced to examine our own reports, apprehensive that something had recently transpired on this subject. Nothing however, has been found except, a ease in Hardin p. 457, in construction of that section of our act of assembly, regulating the change of venue, which requires that the party shall deposit the papers, “ thirty days before the court to which such suit shall be set for trial.” The papers were deposited on the 8th of February, and the. court commenced on the 10th day of March, The court decided that they were, deposited in tune. The day of deposit and first day of the court were, one to be excluded, and the other included.

This is in conformity with the rule for which we contend. It is like the cases which compute thee to or from the act, or the event, and hot to or from the day upon which the act or event took place. If the statute had read, thirty days before the first day of the court to which such suit, should be set for trial, the day would have been excluded. Rut court commenced sometime in the day, and the requisition that papers should be filed before the commencement of the court, would not prevent the filing of them on the morning of that day. Nor would the prohibition against filing them less than thirty days before the commencement, prevent the filing of them thirty days including the morning of the day. In the general, however, the law rejects fractions of days. Yet it is not content that nine days shall pass for ten. Where we count, including one, and excluding another, to most legal purposes, and for ordinary transactions, due time has been given, by computing the number prescribed. So it was done in Hardin. But where we count both the extremes, we fall short, most certainly and essentially. In the case under consideration, the extremes to be computed, were the tenth and nineteenth. For the ninth, we have seen by ail rule, must be excluded. We have then but nine days, from the court. Now if I am correct as to the time, this court having often decided and even in the opinion delivered, virtually declaring, that as the irregularity must have consisted in a matter known to the creditor, and he become the purchaser, he cannot he permitted to retain the advantage so improperly obtained.

A rehearing is therefore prayed.

Answer of the defendant to the petition, by

THOMAS B. MONROE.

It is believed the learned counsel for the plaintiff in error has accidentally mistaken the application of the law he has cited.

The rule that a lease, made to commence from the day of the date of the deed, shall commence not until the day after the day it bears date, affects only the commencement of the term, not the duration or terral nation of it. For where the commencement is Hi us postponed, the day the term begins and the day it ends, shall be both computed in the number of the days of its duration. Whereas, when the term commences the moment the deed is delivered, One of the these days is excluded in the calculation. And the reason is this—in the former case, where the- day of the date is excluded, there is no fraction of a day at the commencement, but in the latter there is a fraction, to exclude which, the Saw in the computation of the time, excludes the day of which it is a part, entirely.

It is, however, contended that all this learning about days, dates, from days, and from times, units and fractions, having arisen out of the statutary law of England, in relation to leases by the tenants of certain particular estates, ought not to be carried by analogy into any other department of the law, much less into this subject, which is exclusively regulated by our statutes. It would be much more fitting for us to draw our analogies from some construction of some other statute of this State, if indeed there can be any construction. If we do this, the question is as conclusively settled, as it is possible any case can be, by the decision of a perfectly analogous case. It is enacted that if the capias be executed ten days before the “return day,” (not “the Court,”) the cause shall stand for trial at the first terra; otherwise not, 2 Dig. L. K. 260, § 4; and it was decided in Pollard vs Yoder, 2 Marsh. 264-7, that the capias returnable on the 15th was executed in time, on the 5th; now unless ten days from a “court day,” is a longer time than ten days before & court day, the case is in point and the law settled.

It would not do to overturn Pollard and Yoder, for all the State had before. and have ever since conformed to its principle; and it would be, it is humbly conceived, impossible, for even the learned counsel for the plaintiff himself, to reconcile it with the decision he asks. It is regretted the case escaped him. not only because of itself, but he would have there found that this court had considered the case of Woods and Patrick, which he cites from Hardin as an authority in favor of the computation of the days they labor to exclude; and it is certainly so. The act, 2 Dig. 1234, requires the papers to be deposited at least thirty days before the court. Sup~ pose it had been one day before the day of court, would it not have been sufficient to have made the deposit on the day before the court day, and suppose the Act was, one day before court, would the deposit be in time on a later day—namely on court day? Certainly not, unless the first day of court Is one day before court! There can Hum be no difference between a day before court, and a day before the day of court; and so the gentleman's own case is against him, unless thirty is more than thirty times one.

But after all, it is still contended, that be this question as it may, the sale is still valid, and this controversy, on this point, proves it,

REJOINER OF

MR. HAGGIN.

The case in Marshall has been read. The attention of the court was not called to the plain, and obvious, and legal import of the word, before the day of an event, and before the event.

The question considered, was in relation to a supposed act of Virginia, as to the computation of time. I rely upon the old common sense construction, so often and uniformly recognized and maintained. If the commencement of the court is at twelve o’clock at midnight, the instant of the transition of the Sabbath, Then before the first day of the court, to the same thing as before the commencement of the court, for the day includes every hour and minute of the twenty four. But if on the contrary, no legislature, or judge, or citizen, understands the court to commence before the hours of business, as ten or twelve o’clock in the day, then the words are essentially different.

So is the case in Hardin. There one of the days was included and the other excluded, although tho words of the act did not expressly exclude either. Here one is unquestionably rejected. Will the computation he the same? Impossible. If so, the books are in this respect nonsensical. Why talk about a computation from the act, as from the day of the as different, if they both embraced the-same period precisely. But I weary. The law is written in our favor, and we trust it must prove, a source of gratification to the court, to find it may reinstate the parties, consistently with the most strict principles.

In the computation of time, under our statutes, whether it be from the event or act, or from the day of the event, one day is to be excluded and the other included.

It seems the acts of irregularity in the sheriff will not affect the purchase of the plaintiff in the execution, unless he be at least assenting to them.

Opinion of the court by

Judge Mills,

overruling the petition for a rehearing.

The advertisement being on the 9th and the sale on the 19th of the month, did leave ten days includng the day of sale. The difference between tho court and the counsel for the plaintiffs in error, is, that the court includes the day of sale, and the counsel excludes it in the computation. It is contended that as the act expressly excludes the day of advertisement, the day of sale is excluded also. This is not a necessary conclusion from the premises; and the contrary is the settled rule of this court, in construing statutes, as is evinced by the cases of Woods vs. Patrick and wife, Har. 457, and Pollard vs Voder. 2 Marsh. 264; and it is now not proper to overturn it.

This conclusion in favor of this sale, being adopted, excludes from the consideration of the court, the effect which a want of sufficient time might have upon the right of the plaintiff in the. execution as a purchaser. We would not be understood to say, that, the want of sufficient time, given by the sheriff, would vitiate the sale. It is not difficult to discriminate between the acts of a plaintiff in controling the execution, and those of the sheriff. The latter may act illegally without the assent of the former, or making him responsible, and as a general rule, without deciding what is its particular bearing on this case, we incline to the opinion, that it would be necessary to prove that the plaintiff was instrumental in procuring, or at lea-t assenting to him wrongful acts of the sheriff, done to the prejudice of the defendant, before his rights could bo affected.

Twenty days notice required of sales of chattels, and but ten of lands.

Debtor must search out his creditor to pay him, not await his application.

Haggin for plaintiff; Monroe for defendants.

The attention of the court is called to the supposed impropriety of requiring twenty days delay after the seizure of personal estate, and less in the case of lands. If tins be an impropriety or even an absurdity, it is one for which there is no redress in the reach of this court. We cannot construe ten to mean twenty to avoid it, and the argument would he more properly addressed to another department of the government, which regulates this matter. It is however worthy of remark, that lauds must be advertised on a court day, and be sold on some notorious part of the premises, and chattles need not be so managed, which is a full equivalent for the difference between ten and twenty days delay.

We do not admit that the sympathies of the court, ought to be enlisted against this sale. We cannot say that the sale of lands for debt, is an odious practice, and there is nothing in this record which shews that the purchaser has paid less than a fair price for the land, and we cannot therefore have any leaning against his interest, especially as an attention to the debt, and paying it, when it became due, on the part of the plaintiffs in error, (as they are shewn to be wealthy and able to pay,) would have prevented all the supposed mischief of which they complain. Whether the creditor did or did not know of their residence, they certainly knew of his, or where their security for the money lay. They appear to have waited to see if the debt would find its way to their residence, until it found their estate elsewhere, when a little attention on their part to the ancient and good, but we admit now unfashionable, rule, of searching out their creditor and paying him, would have saved them of this trouble.

Th.c petition is overruled.  