
    
      Patrick McElmurray v. Henry Z. Ardis.
    
    A subsequent sheriff has the same power to complete a sale of land, made by a former sheriff, by executing titles for the same, as the former sheriff himself had. A subsequent sheriff may execute titles to land sold by his predecessor in office, either to the actual purchaser, or to his assignee or legal representative.
    Where a party, to whom a purchaser of land at sheriff’s sale liad ordered the sheriff to execute titles, had died before receiving them, — titles made by a subsequent sheriff to the executor of the deceased, “for the uses and trusts of his will,” were held to be good.
    
      Before Frost, J. at Barnwell, Extra Term, July, 1848.
    This was an action of trespass to try title. The plaintiff claimed under the will of Patrick McElmurray, seni< r. The testator lived in Georgia, opposite to the tract in dispute, and planted it many years before his death, which occurred in 1818. It. was called his “Carolina Swamp,” and by the scription of “ the plantation, known as the Caiolinu Swamp,” it was devised to the testator’s son, Andrew, for life, with ie-mainder in fee to the plaintiff. Andrew planted the land during his life time, and died four or five years ago. The plaintiff is his son. When Andrew died the plaintiff was in the Penitentiary, in Georgia. The heirs of Andiew claimed the land, but when the plaintiff came back he and Syms took possession of the land and planted it. Andrew lived in Georgia, and called this bis Carolina swamp place. The grant called for 200 acres; the land run more. One hundred acres had been sold, and the residue, owned by the testator, was 250 acres ; worth $2,500 to .$3,000.
    6 Stat. 394.
    The defendant produced a decree in sum. pro., Willis v. Patrick McElmurray, for $60, entered Spring Term, 1830, and a fi.fa., lodged 8<h April, 1830. Ou the execution was indorsed a levy of “ 120 acres of laud, more or less, adjoining lands of C. F. Pickling and William Rogers, levied ou as the pioperty of McElmurray.”
    In ihe sale book of Preston Harley, then sheriff, is an entry, 6th September, 1830; “Sold 120 acres of land, more or less, to David Turner, for $81.” The receipt of the purchase money was entered in the sale book and indorsed on the execution. An order from David Turner to ihe sheriff, to make titles for the lan l to Andrew McElmurray, was produced, in which Turner acknowledges he had bid off the land for Andrew. The will of Andrew McElmurray was produced, dated 30th January, 1843, by wh.ch he devises the remainder of his estate to be equally divided among his children, and the executor is directed to keep the estate together, and cultivate the lands, and apply the proceeds to the payment of the testator’s just aud lawful debts. The defendant was appointed executor, and had qualified. The deed of W. J. Harley, sheriff, successor in office to Pieston Hailey, dated 4th March, 1844, conveys to Henry Z. Ardis, executor, for the uses and trusts of the will of Andrew McElmurray, all the right of Patrick McElmurray in that tract of land, commonly called the Carolina Swamp place, containing-acres, more or less, situate in Barnwell distiicl, and adjoining lands of -and of-.
    It was proved that the tract of land known as the Carolina Swamp place, adjoined lands, at the time of Preston Harley’s levy, owued by C. F. Fickllngand William Rogers ; but the principal boundary was Savannah river, which compassed the greater part of the tract, and that Patrick McElmurray owned no other land in that vicinity.
    It was objected to the defendant’s title, under W. J. Har- , ley’s deed, that by the Act of 1829, a subsequent sheriff can only convey to “ the purchaser.” But it was held, by the Circuit Judge, that the Act should be so construed as to confer on a subsequent sheriff the same power to com-pie(e a saie 0f land, made by a former sheriff, by executing titles for the same, as thp former sheriff himself could exercise in the matter.
    It was also objected that the sheriff had no authority to convey the land to .Henry Z. Ardis, executor, subject to the uses and trusts of the will of Andrew McElmurray.
    The objection was overruled ; because the right to the possession of the land, as part of the estate of Andrew Mc-Elmurray, was vested in the defendant, and the rights of the creditors and devises were represented by him, so that if a bill were to be filed for an execution of the contract of sale, the defendant would have been the proper person to receive the title.
    Another objection, that the description of the land, in the levy,' was insufficient, and the sale void, for uncertainty in the subject of the levy, was also overruled.
    It was further objected that the description in the deed did not correspond with the description of the land levied on, and sold by the former sheriff. This objection was not decided as a question of law ; but the jury were instructed that the same land might well be conveyed by different descriptions, if each identified the same subject; and it was submitted to them to determine, on the evidence, whether the tract conveyed in the deed of W. J. Harley to the defendant, by the description of McElmurray’s Carolina swamp place, was the same tract described in the levy by Preston Harley, as joining lands of Fielding and Rogers.
    The jury found for the defendant.
    The plaintiff appealed, and moved the Court of Appeals for a new trial:
    1st. Because his Honor erred in deciding that Wm. J. Harley, as successor of Preston Harley, was legally authorized to make titles to the land in question, to the defendant, as executor of Andrew McElmurray; whereas it was submitted that the defendant was not authorized to receive, and the succeeding sheriff had no power to make, titles to the defendant as executor of Andrew McElmurray.
    2d. Because his Honor erred in deciding that the land described in Wm. J. Harley’s deed, was identical with the land levied on and sold by Preston Harley, and that the variance in the terms of description was immaterial.
    3d. It was submitted that the levy and sale by Preston Harley was void, on the ground that the land alleged now to have been sold, was not described' with sufficient certainty, and that the imperfect description given, was not calculated to give notice of what was levied on or sold, but rather to, mislead.
    
      5 Stat. 54.
    4th. It was submitted that the defendant’s deed from Wm. J. Harley was void.
    1st. For uncertainty of description of the land; and 2d.' Because the description, as far as it goes, does not correspond with the description marked in the levy, on the execution, and in the sale book.
    5th. Because the verdict, in other respects, was contrary' to law and evidence.
    
      Bauskett, for the motion.
    Bellinger, contra.
   Frost, J.

delivered the opinion of the Court.

All the grounds of appeal, except the first, present questions of fact, and the Court is satisfied with the verdict.

The questions presented by the first ground, are, whether a subsequent sheriff has the same authority to make titles to land, as the sheriff who made the sale; and if he has, whether he can execute titles to any other than the actual purchaser ; and if he may execute titles to any other person, whether the title to the land in dispute was legally conveyed to the defendant.

Prior to the Act of 1803, it was the duty of the sheriff, who had sold land under a fieri facias, to complete the sale by the execution of titles, even after the term of his office had expired. To remedy this inconvenience, it was enacted that if any sheriff shall sell any property and “ die, resign, or be removed from office,” before he has executed titles therefor, it shall be lawful for his successor to make titles to the purchaser. By an Act passed in 1829, and incorporated in the sheriff’s Act of 1839, it is provided that if any sheriff has sold, or shall legally sell, real- or personal estate, and such sheriff is dead, resigned, or otherwise out of office, before he has executed titles therefor, it shall be lawful for any subsequent sheriff, upon the terms of sale being complied with, or satisfactory evidence furnished that they have been complied with, to make titles therefor “to the purchaser.”

It seems plainly the intention of the Act to substitute the subsequent sheriff in stead of his predecessor, who made the sale, for the purpose of executing titles; and to transfer to him all the power and authority over the subject, which his predecessor possessed. The Act is remedial, and should be so construed as to redress the mischief. It was the purpose of the Act to remedy the inconvenience experienced from the exercise of official duties by one who had ceased to be an officer. This purpose would be only partially accomplished by restricting the power pf-the subsequent sheriff to the .making of titles to the actual purchaser; and reserving to the sheriff who made the sale, the power to make titles to an assignee, &c. of the putchaser.

Then may the sheriff, who made the sale, execute titles to any other person than the actual “purchaser?” It is and has been, indefinitely, the common practice for the sheriff’ to make titles for property to the assignee of the purchaser; or to the person whom the bidder, entered as the purchaser in the sheriff’s book, may represent to be the actual buyer. So many titles have been acquired in this way, that they cannot now be declared illegal. If the sheriff may convey to an as-signee, why may he not to a devisee? And if to persons who thus claim by purchase, why may he not to those who claim by descent? It is objected that, in the exercise of this authority, it would be necessary for the sheriff to determine who is devisee or heir, and he would thus be invested with judicial functions. This objeción applies, and in a much greater degree, to the levy and sale of property under execution. The same expedients and remedies may be resorted to, in either case, if the sheriff encounters a conflict of interests. But the objection is deprived of force in its application to the power to make titles, when it is remembered that, in every official act, the sheriff has to deal with adverse interests and litigant parties. And to the argument of danger in conferring this power on the sheriff, it may be replied that it is incomparably less than may be objected to his power to levy and sell under execution. It is not more difficult to ascertain the persons who have a legal right to the titles, than to distinguish the property of the defendant; and the sheriff can have no greater motive to convey to a wrong person, than to levy on laud not the properry of the defendant. Yery great inconvenience would ensue from denying the authority of the sheriff to execute titles fo the assignee, or legal represen-tive of the purchaser. If it is not lawful for him to execute titles, the Court of law could not’order him to do it; nor could the Court of Equity enforce a specific performance against him. The assignee, devisee, or heir of the purchaser, would be driven into equity against the defendant, his assignee, heir or devisee, for the execution of the contract.

The remaining question is whether the conveyance to the defendant is valid. Generally, the titles should be executed to the party having the legal estate. But if they had been made to the devisees, the laud was subject to a trust confided to the executor for the payment of debts. This he might have enforced against the devisees, in equity. The conveyance to him fulfils the intention of the will, by giving him possession for the peí formarme of the trusts; and when they are satisfied, the legal title will be executed, by operation of law, in the devisees.

The motion is refused.

The whole Court concurred.

Motion refused.  