Busey ex rel. Hilleary v. Tuck

Bartol, C. J., delivered the opinion of the Court. This is an appeal from an order overruling a motion to set aside a sheriff’s sale. A writ of fi. fa. was issued on the 30th day of April 1875, on a judgment recovered by William H. Tuch against Leonard Hilleary, returnable to June Term 1875 of the Circuit Court of Prince George’s County. It was levied on the lands of the defendant, Hilleary, on the 26th day of May 1875. ¹⁷³ Afterwards in the same year, the term of office of the sheriff expired by the election and qualification of his successor.

In June 1816, the then late sheriff, by whom the levy had been made, advertised and sold the land to Magruder, the appellee. A motion to quash the writ and schedule, and set aside the sale was made by the appellant as next friend of Hilleary, he being alleged to be non compos mentis. In support of the motion eleven reasons were assigned which we will consider in their order. The first, second, third, and tenth reasons deny the power of the sheriff, after his term of office had expired, to complete the execution of the writ, which had been issued, and levied while he was in office.

The appellant’s counsel refer to the Act of 20th Geo. 2, ch. 37; (Alex. Br. St., 765.) It would seem that statute, if it is to be construed as mandatory, has never been in force in Maryland. The uniform practice in this State has always been that the sheriff who begins the execution shall end it though his term of office expires in the meantime.

In 2 Harris’ Entries, 776, where the form of a writ of vendi is given, it is said, if the sheriff is out of office, the writ is directed to him as “late Sheriff,” and in a note by the author on the same page, he says, “the sheriff that begun the execution shall end it, though he is out of office.” Salk., 323; Ld.Raym., 990; 6 Mod., 295, 296. In Purl vs. Duvall, 5 H. & J., 69 , it was held that when a sheriff seizes property under a fi. fa. and returns it unsold for want of buyers, and goes out of office, the vendi must be issued to him, not to his successor. It has been decided, that though a fi. fa. cannot be levied after the return day, if a levy has been made before, the property may be sold after the return day. Gaither vs. Martin, 3 Md., 146 .

In Clarke vs. Bealmear, 1 G & J., 443, 448; and Manahan, et al. vs. Sammon, et al., 3 Md., ¹⁷⁴ 463 , it is said the vendí confers no power on the sheriff which he did not possess under the fi. fa. It only commands and requires him to do what he could have done under the fi. fa. which .is the effective writ. In Moreland vs. Bowling, 3 Gill, 500 . It was decided that “a sheriff may return a, fi.fa. in his hands after a levy and after an effectual effort to sell, not only until the return day has passed, hut until several terms have passed, and may then sell.” The Code, Art. 88, sec. 30, provides “If any sheriff shall have property in execution, and shall fail to make sale thereof for five years *• * * * * the person for whose use such execution was issued may in either case have a venditioni exponas issued to the sheriff for the time being.” This provision of the Code, and the authorities before cited are sufficient to show that the sheriff who made the levy, had power to sell after the return day of the writ of fi.fa. and after his official term had expired.

The fourth reason has been abandoned; this alleged that the parcel described as the “Three Sisters” is incorrectly described. The appellant concedes the description of this parcel in the schedule and return to he correct. The sixth reason avers that the levy or seizure by the sheriff was not legally and properly made, “ that he did not in fact go upon and view said real estate at the time the alleged levy was made hy him.” It appears from the return that two tracts of land were seized, one called “ Three Sisters ’ ’ on which the defendant Hilleary then resided, and also a tract of wood-land called “ Warring’s Lot.” The sheriff, Wallis, was first examined as a witness for the appellant — his