Spicer's Lessee v. Connaway

With respect to the first question, whether a mere misrecital in the writ of execution recited in the deed can affect the plain*313tiff’s title under that judgment and execution, there is no doubt the writ was to carry this judgment into effect, the recital of which judgment in it is therefore also mere matter of form. But at best what is this but irregularity or error? To take advantage of which, this defendant ought either to have appeared at the return of the writ to set it aside or brought his writ of error; but if he delayed his application the court will give him no relief by motion after the term, nor could he bring error after five years. But when he has sat his time and not moved when he might have had redress, shall he now have advantage of the slip of form after plaintiff has been at so much trouble and expense? In this way no length of time bars. The £18 was no doubt for the £10 and costs, but this cannot be easily ascertained as costs were not formerly indorsed, yet if this is to defeat plaintiff’s title and recovery, where does the argument stop? A mistake in one cent might defeat a title. By 1 Del.Laws 115, if any judgment be reversed, the lands sold shall remain with the purchaser; and I do not know where the principle would end if an error in the proceedings could avoid the title.

Bidgely. There is here no error. The judgment is right, but there is no legal execution. The judgment has not been enforced; so part of the judicial process may in some cases be right, and the rest void. We cannot set aside the judgment; and if it were even reversed, the sale remains good by the Act of Assembly, provided it was regular. The judgment is in full force until avoided, and a regular sale under a judgment, while in force, is good when done and shall always stand, though the judgment be reversed; but here was no regular sale, for the writ was never good and could give no authority. Upon the principles of the gentleman you might sell my lands under a judgment rendered against a third person. The judgment would not be reversible, and because the proceedings were not set aside at the first term, all would be right, my title would be gone, and I could have no advantage of the irregularity.

This deed is not under the execution and judgment of Polk; a misrecital in a deed binds parties and privies. If a deed is not necessary, and the plaintiff can have advantage of the sale under Polk’s proceedings, why make a deed at all in any case? Why is a petition and order that the present sheriff shall convey where his predecessor has sold given by law? In the case of Peery’s Lessee v. Burton it was decided that a sheriff’s deed, unless a judgment be shown to warrant it, passes no title; and that determination has never been doubted.

Curia advisare vult.