Jarboe v. Hall

• Decision Date: 18 February 1873
• Citation: 37 Md. 345
• Parties: WILLIAM A. JARBOE, JR. v. WILLIAM W. HALL, Thomas Parker, and Others. William W. Hall and Others v. William A. Jarboe, Jr.
• Court: Maryland Court of Appeals

37 Md. 345

WILLIAM A. JARBOE, JR. v. WILLIAM W. HALL, Thomas Parker, and Others.

William W. Hall and Others v. William A. Jarboe, Jr.

Court of Appeals of Maryland

February 18, 1873

The cause was argued before BARTOL, C.J., BRENT, MILLER and ALVEY, JJ.

Daniel Clarke, for Jarboe.

R B. B. Chew and William H. Tuck, for Hall and others.

Bartol C.J., delivered the opinion of the court.

The sheriff's sale, which gave rise to this controversy, was made on the 19th of July, 1869, under and by virtue of five writs of fieri facias; all of which are set out at length in the record, and which, for sake of brevity, we will refer to by their numbers, as follows: No. 18, No. 48, No 49, No. 50 and No. 51.

In No 18 the writ was issued on the 20th of June, 1868. In each of the others the writs were issued on the 30th of July, 1868. In No. 50, the writ appeared originally to have been issued on the 30th of June, 1868; and in No. 51, on the 20th of July, 1868; but these were clerical errors which were afterwards corrected, and the true date of their issue was supplied.

Under each of the writs the sheriff returned the same schedule of property, setting forth that he had made his levy thereon as the property of William W. Hall, (one of the defendants named in the writs,) on the 17th of July, 1868.

The description of the land seized, as contained in the schedules, is as follows: "All that tract of land known as 'Beaver Dam Neck,' part of 'Parcel Enlarged,' and part of 'Poplar Thicket,' containing 425 acres, more or less, and adjoining the lands of S. T. Belt, R. D. Hall's heirs, and others;" certain personal property is also mentioned in the schedules.

In the special returns of the sheriff, which were the same under each of the writs, he returned that in virtue of the writ in No. 18, describing it, he had, on the 17th of July, 1868, "seized and taken in execution all the right, title, interest, estate, property, claim and demand, at law and in equity, of William W. Hall, of, in and to the following real estate in Prince George's County, Maryland, to wit:" (then follows the same description as contained in the schedules,) and stating "that it is the same land on which the said William W. Hall then resided."

The return further states that he had given public notice of the time and place of sale, etc., and "that said real estate would be sold to satisfy the amount due on said execution (in No. 18) and four other writs of fieri facias, to wit:" (describing the writs in Nos. 48, 49, 50 and 51.) He returned William A. Jarboe, Jr., as the purchaser, for the sum of twenty-five hundred dollars.

Upon the return of the writs, at October Term, 1869, the defendants, and certain sureties and judgment creditors of William W. Hall, filed motions to quash the several writs of fieri facias, and the levies thereunder, and to set aside the sale, assigning several reasons in support of the motions, which need not be repeated here. In No. 18, the motion to quash was sustained by the Circuit Court, and the writ of fieri facias in that case was quashed and the levy and sale thereunder set aside; but no appeal was taken from the action of the Circuit Court in that respect; its ruling being acquiesced in, we are not called on to review it on this appeal. On the 15th of April, 1871, Jarboe, the purchaser, appeared by counsel and moved in each of the other cases, (Nos. 48, 49, 50 and 51,) "for leave that the sheriff may amend his schedule and return" filed therein.

By the order of the court testimony was taken upon the several motions, whereupon the Circuit Court allowed the amendments to be made, and then passed an order setting aside he sale under Nos. 48, 49, 50 and 51.

From the order allowing the amendments William W. Hall and others appealed; and an appeal was taken by Jarboe, the purchaser, from the order setting aside the sale.

Upon these cross appeals the first question for this court to determine, is whether the amendments were properly allowed.

We do not consider that the application to amend was made too late. In Berry v. Griffith, 2 H. & G. 337, it was said that "a sheriff has a right, 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." In that case the correction was made at the term to which the writ was returned. But there is no authority for saying that the right to make such correction is always limited to the return term of the writ. In this case the motions to quash the writs, and to set aside the levies and return, were pending in the Circuit Court, the matter was still in fieri,...