Josiah Siddons Griffith, James Chew, and Mary Chew, His Wife, Plaintiffs In Error v. John Bogert, Abraham Myer, and Thaddeus Smith

• Decision Date: 01 December 1855
• Citation: 18 How. 158,15 L.Ed. 307,59 U.S. 158
• Parties: JOSIAH SIDDONS GRIFFITH, JAMES S. CHEW, AND MARY E. CHEW, HIS WIFE, PLAINTIFFS IN ERROR, v. JOHN B. BOGERT, ABRAHAM MYER, AND THADDEUS SMITH
• Court: U.S. Supreme Court

59 U.S. 158

18 How. 158

15 L.Ed. 307

JOSIAH SIDDONS GRIFFITH, JAMES S. CHEW, AND MARY E.

CHEW, HIS WIFE, PLAINTIFFS IN ERROR,

v. JOHN B. BOGERT, ABRAHAM MYER, AND THADDEUS SMITH.

December Term, 1855

THIS case came up by writ of error, from the circuit court of the United States for the district of Missouri.

The case is stated in the opinion of the court.

It was argued by Mr. Crittenden, for the plaintiffs in error, and Mr. Geyer, for the defendants.

Those of Mr. Crittenden's points, which were included in the decision of the court, were the two following:——

1. Because the judgments themselves were void, so far as they related to, or affected the lands, tenements, or hereditaments of the intestate; or, if not, that the executions issued thereon, dated respectively, the 28th of February, and 9th of April, 1821, under or in virtue of which the sheriff sold the land in question, were illegal, null and void, because issued before the expiration of eighteen months from the date (1st of November, 1819,) of the letters of administration of the estate of said intestate, and were therefore issued in direct violation of the express provisions of the before-recited act of the 25th of January, 1817; 8 Metcalf, 502.

2. Because the sale, in virtue of which said deed purports to have been executed, was made on the 1st day of May, 1821, and before the expiration of eighteen months from the date, (1st of November, 1819,) of the said letters of administration, contrary to the express terms of the said act of 1817, and was, therefore, illegal and void.

The only questionable part of this proposition is, whether the 1st of May, 1821, is a day after the expiration of eighteen months from the 1st of November, 1819, or included in, and part of the period. The reasonable and legal rule of computation of time in such cases, is to exclude the first day, that is, the day of the event or act from which the computation is to be made. It is but the fraction of a day, and the law takes no notice or account of it. This is believed to be the rule as now settled by judicial discussions in Missouri. Gantly v. Ewing, 3 How. 707; Kennon v. Osgood, 19 Mo. R. 60; Blaine v. Beehler, 12 Mo. R. 477.

Upon the principal point in the case, Mr. Geyer said:——

The sale was made on the 1st of May, 1821, which was after the expiration of eighteen months, from the death of the intestate, or the date of the letters of administration, (1st of November, 1819,) construing the act of 1817 according to the rules and principles which have been recognized and applied in analogous cases.

It has been laid down in many cases as a general rule, that where time is to be computed from an event or an act, the day of the event or the performance of the act is to be included. Norris v. The Hundred of the Gawthry, Hobart, 139; King v. Adderly, Douglass, 463; Castle v. Burdett, 3 Term R. 623; Glassington v. Rawlings, 3 East, 407; Priest v. Tarlton, 3 N. H. Rep. 93; Thomas v. Afflick, 16 Pa. R. 14; Robinet v. Compton, 2 La. An. R. 856; Pierpoint v. Graham, 4 Wash. C. C. Rep. 232; Arnold v. United States, 9 Cranch, 104.

In some cases, the rule has been held to be, to exclude the day of the act or event from the computation; in others, the day has been excluded without laying down any general rule. King v. Cumberland, 4 Nov. and M. 375; Judd v. Fulton, 10 Barl. 117; Wing v. Davis, 7 Maine, 31; Ex parte v. Deane, 2 Cowen, 605; Cornell v. Moulton, 3 Denio, 12; Snydor v. Warren, 2 Cowen, 518; S. B. Mary Blane v. Beehler, 12 Mo. R. 477; Kimm v. Osgood's Administrators, 19 Mo. R. 60.

But it has been denied that there is any general rule, that the day of the act or event from which time is to be computed is to be included or excluded, and held that whether it is to be taken inclusive or exclusive, depends upon the reason of the thing, the context, and subject-matter. Lester v. Garland, 15 Vesey, Jr., 248; Dowling v. Foxall, 1 Ball & Bealty, 196; Windsor v. China, 4 Maine, 298; Bigelow v. Wilson, 1 Peck, 485; Presbury v. Williams, 15 Mass. 193; Jones v. Planters' Bank, 5 Humphries, 619; O'Conner v. Towns, 1 Texas, 107.

In the earlier cases, 'from the date' was generally held to be inclusive, and 'from the day of the date,' exclusive, but the doctrine now most generally received is, that there is no difference in the two forms of expression, both meaning the same thing; and in the computation of time on promissory notes and bills of exchange, the day of the date has generally been excluded; in other instances, it is held to be inclusive or exclusive, according to the context and subject-matter. Pugh v. Duke of Leeds, Cowper, 714, and cases there cited and reviewed; Rand v. Rand, 4 N. H. 267; Moore v. Bond, 18 Maine, 142; Wilcox v. Wood, 9 Wend. 346.

It appears to have been very generally agreed that either the first or the last day shall be included in the computation, and in no case are both to be excluded or included, unless the contract or statute upon which the question arises will admit of no other construction. Ex parte v. Deane, 2 Cow. 605; Thomas v. Afflick, 16 Pa. R. 14; Sander's Heirs v. Norton, 4 Monroe, 474.

Upon a review of the cases, it appears that there is no general rule in computing time from an act done or an event, or from a date or the day of the date, that the day is to be inclusive or exclusive; but, according to the adjudged cases, whether the day in either case is to be included or excluded, depends upon the reason of the thing, the subject-matter, and the context.

But the title of a bon a fide purchaser, at judicial sales, is not affected by any irregularities in the proceedings of the officer, or in the process under which he sold; therefore, if the eighteen months limited by the statute had not expired at the time of the sale, under which the defendants hold, the sheriff's deed would not, on that account, be void; at most, it would be voidable, and could be impeached only in a direct proceeding, and not in a collateral action. All that is necessary to support the title of a purchaser in an action of ejectment, is the judgment, execution, levy, and sheriff's deed. Jackson v. Steinburg, 1 J. C. 153; Jackson v. Bartlett, 8 J. R. 361; Jackson v. Rosevelt, 13 J. R. 97; Same v. Delaney, 13 J. R. 535; Same v. Robbins, 16 J. R. 537; Brown v. Miller, 3 J. J. Marsh, 439; Lawrence v. Sheed, 2 Bibb, 401; Webber v. Stith & Cox, 6 Monroe, 101; Day v. Graham, 1 Gel. (6 Ill.) R. 435; Swigart v. Harber, 4 Scam, 364; Ware v. Bradford, 2 Al. R. 676; 19 do. 132; State Bank v. Noland, 13 Ark. R. 299; Newton v. State Bank, 14 Ark. R. 9; Byers v. Fowler, 12 Ark. 218; Wheaton v. Sexton, 4 Wheat. 506; Hart v. Rector, 7 Mo. R. 531; Reed v. Heirs of Austin, 9 Mo. R. 722; Landes v. Perkins, 12 Mo. R. 254; Draper v. Bryson, 17 Mo. R. 71; Carson v. Walker, 16 Mo. R. 68; Robinett v. Compton, 2 La. An. R. 856.

All the questions now raised were before the court, which was a court of competent jurisdiction, and its acts cannot now be impeached. 1 Baldwin, 246; 1 Serg. & Rawle, 101; 8 Serg. & Rawle, 397; 2 Pet. 257; 10 Pet. 473; 2 How. 343.

Mr. Justice GRIER delivered the opinion of the court.

The plaintiffs claim the land which is the subject of controversy in this suit, as heirs of Isaac W. Griffith, who died seised of the same in 1819. His estate was insolvent. Judgments were obtained against his administrators in 1820, executions were issued thereon, and the property sold by the sheriff. The defendants claim under the purchaser at this sale.

On the trial, the court below instructed the jury 'that the sheriff's deed, read in evidence under the judgments and executions also in evidence, was effectual to devest the title of the heirs of Isaac H. Griffith to the land mentioned in said deed.'

It is admitted, that in the State of Missouri the lands of a deceased debtor may be taken in execution, and sold by the sheriff, in satisfaction of a judgment against the administrator. And also that such deed vests in the purchaser all the estate and interest which the deceased had in the property at the time of his death. But it is alleged that this sale is 'without authority of law and void,' because the execution was issued and sale made before the time limited for stay of execution against the real estate of a decedent. The law and the facts, on which this objection to the validity of the sale is founded, are as follows:

By an act of 1817, it is provided that 'all lands, tenements, and hereditaments shall be liable to be seized or sold upon judgment and execution obtained against the defendant or defendants, in full life, or against his or her heirs, executors, or administrators, after the decease of the testate, or intestate; provided, no such land, tenements, or hereditaments, shall be seized and sold until after the expiration of eighteen months from the death of such ancestor, or the date of the letters testamentary or letters of administration, and execution may issue against such lands, tenements, and hereditaments, after the death, testate or intestate, and after the time aforesaid, in the same manner as if such person were living.'

The letters of administration on the estate of Girffith are dated on the 1st of November, 1819. The sale was made by the sheriff on the 1st of May, 1821, on executions previously issued.

It is contended that the term of eighteen months from the 1st of November, 1819, had not expired on the 1st of May, 1821, and consequently the sale was without authority of law, and void.

But we are of opinion...