IN error from the Supreme Court. A writ of summons in partition
was issued by the plaintiff in error, in the Court of Common Pleas
of York county, returnable to September term 1792, by which the
defendant in error was summoned to show wherefore the following
property, held by the parties as tenants in common, should not be
divided: to wit; 'one ferry at the river Susquehanna in Hellam
township in the county aforesaid, six messuages, one barn, four
stables, four gardens, one orchard, 250 acres of arable land, and
371 acres of woodland, and the usual allowance of six per cent.
with the appurtenances in the same township of Hellam, in the said
county of York.' The writ being returned, 'summoned,' both the
parties appeared by their attornies, the plaintiffs filed a
declaration, setting forth their title, and demanding partition of
the same estates that were specified in the writ; and judgment was
rendered, by consent, in general terms, 'that partition be made.' A
writ of partition, accordingly issued on this judgment,
returnable
Page 4 U.S. 67,
68
to December term 1792, when 'the sheriff returns the writ, and
that partition hath been made according to the command thereof;'
both the parties appeared by their attornies; and judgment was
rendered, 'that the partition so made be confirmed, and be and
remain firm and stable forever.' The writ of partition recited the
words of the writ of summons, except that in describing the place,
where the several estates were situated, the recital added the
township of Windsor to the township of Hellam, stating the premises
to lie 'with the appurtenances in the same township of Hellam and
Windsor, in the county aforesaid.' It then proceeded to recite the
judgment, 'whereupon it was considered by the said Court, that
partition thereof between the parties aforesaid be made:' and
concluded with the mandatory clause to the sheriff: 'Therefore we
command you that taking with you twelve honest and lawful men of
your bailiwick, &c. in your proper person you go to the said
ferry, &c. And there by the oaths or affirmations of the said
twelve men, in the presence of the parties aforesaid, by you for
that purpose to be warned (if upon being warned they will attend)
and the said six messuages, &c. (specifying all the estates
mentioned in the writ except the ferry) with the appurtenances
(having respect to the value thereof) into two equal parts you
cause to be parted and divided, and one of the said equal parts to
the said plaintiffs, &c. and the other equal part unto the
defendants, &c. to hold to them in severalty you assign and
deliver, so that neither the said plaintiffs, &c. nor the said
defendants, &c. have more of the said ferry, six messuages,
& c. with the appurtenances than to them of right belong or
appertain. And the said plaintiffs, &c. their equal half part
thereof to them allotted, and the said defendants, &c. the
other equal part thereof to them allotted, may hold in severalty.
And that the partition thereof so openly and distinctly by you in
form aforesaid made you have before our Judges, &c.' The
inquisition held under this writ of partition, after naming the
persons constituting the inquest, states 'that they were duly sworn
and affirmed to divide and make partition of one ferry, at the
river Susquehanna in the township of Hellam and county of York
aforesaid, six messuages, &c. with the appurtenances in the
same township of Hellam and Windsor in the county aforesaid,
between the plaintiffs, &c. and the defendants, &c.' And
after dividing and parting the whole into two equal parts, the
inquisition proceeds to a specification, that the inquest 'have
parted and divided the said ferry, messuages, lands and premises
with the appurtenances into two equal parts, having regard to the
true value thereof. And the lot marked on the annexed draught No.
1. containing the said ferry at the river Susquehanna, with all the
flats, &c. thereunto belonging; the lot marked in the said
draught No. 2, &c.; and
Page 4 U.S. 67,
69
the tract of land marked No. 3, &c., also a fishery on the
river Susquehanna, at or near the said ferry, together with each
and every of their rights, &c. they have allotted to the said
plaintiffs their heirs and assigns forever,' &c. [
Footnote 1] A writ of error was brought by
the plaintiff in the partition on the judgment of the Common Pleas,
but that judgment being affirmed by the Supreme Court, the cause
was removed into this Court, by the same party.
For the plaintiff in error (who was also the plaintiff in the
partition) Lewis made the following objections to the
proceedings.
1st. That the original writ, declaration, and judgment, only
call for a partition of lands in Hellam township; but the judicial
writ recites the original writ to have been for lands in Hellam and
Windsor townships, and commands a division of them; and the return
and final judgment are for lands in Hellam and Windsor townships.
The declaration, judgment, and execution, must pursue the writ; and
if the execution does not pursue the judgment it is a nullity.
Execution is obtaining the actual possession of the thing recovered
by law; but the lands in Windsor township never were recovered. 1
Inst. 154.a. Ibid. 289. 2 Bac. Abr. 329. It is evidently an error
of the attorney; but can he correct his errors in this way? The
authorities, both in criminal and civil cases, show the contrary;
for, although it may not be necessary to name a township, town,
street, &c. in the process and pleadings, if they are named,
they must be proved. 2 Hawk. P. C. ch. 46. s. 34. Salk. 661. Bull.
N. P. 89. Hob. 37, 8. 2 Inst. 513. Is it possible, however, to
maintain, that an execution can issue for a greater quantity of
lands, or for different lands, than what is recovered by the
judgment upon which it is founded? The law is incontestably
established, that the slightest variance in the recital of a
record, as between the count and the writ, so between the judgment
and the execution, is fatal. Cro. E. 185. 329, 330. 829. 2 Lutw.
1179. 1181. 2 Vent. 153. Gilb. C. B. 50. 3. 239. Besides, the
statutes of jeoffaille do not extend to judicial writs, when the
party has no day in Court: and under the authority of the present
judicial writ, any other lands might as well have been divided, as
those demanded in the declaration and recovered by the
judgment.
2d. That the original writ, the declaration, and the judgment,
are for a ferry, six messuages, &c. but the judicial writ
omits
Page 4 U.S. 67,
70
the ferry in the mandatory clause; and yet the ferry is divided
by the inquest, who could only act to the extent of the command and
authority in the writ of partition. This, too, is a mistake; but
the consequences would be ruinous, indeed, if it could be
arbitrarily corrected by the sheriff or the inquest. The sheriff
must execute the command of the Court, doing neither more, nor
less; as he was not commanded to divide the ferry, he had no
authority to do so; and, of course, the division is a nullity. Hob.
37, 8. Moore 19. 3d. That the inquest have assigned a fishery to
the plaintiffs, which never was put in demand; and the defendants
sweep the same water. 2 Bl. Com. 190, 191. 2 Keb. 413. 580. 4th.
That it does not appear, on the sheriff's return, that the parties
attended, or were warned to attend, the execution of the writ of
partition; though this was commanded by the writ, is required by
the law, and is recognised by all the precedents. 5th. That the
return to the writ of partition does not state that the premises
were assigned and delivered to the respective parties, as the writ
directs; but merely that they were allotted. These objections were
answered by Ingersoll and Hopkins, for the defendant in error,
substantially as follows: 1st. That every intendment will be made
in favour of a judgment; 2 Keb. 413. and it is admitted, that all
the proceedings are regular till the issuing of the judicial writ.
In the execution of that writ, also, the Court will presume the
sheriff has acted lawfully and faithfully till the contrary is
shown. But it appears, on a connected view of the record, that the
property demanded, is the same property that was divided, the words
'same' and 'thereof' applying relatively from the first to the last
of the process, as designating the same specific property. It is
true, that the name of Windsor township is first introduced in the
judicial writ; but if the introduction is not tolerated as an
amendment for the sake of greater certainty, it ought to be
disregarded as surplusage. The writ of partition was issued by the
plaintiffs, who cannot take advantage of their own error; Moore,
692. 5 Com. Dig. 301. 3 Bl. Com. 16. the judgment on the return, it
will be presumed, was rendered at their instance, at least they
appeared by an attorney on the record; and there has been a long
acquiescence of the parties. 2d. That the ferry, though
accidentally omitted in one clause of the judicial writ, is
mentioned in other of its clauses, and is contemplated in every
part of the record as an object of partition. It belongs to lot No.
1, and may be considered as appurtenant to it. 3d. That the fishery
was appurtenant to lot No. 1. and was named in the inquest, merely
as a matter of detail and specification.
Page 4 U.S. 67,
71
4th. That notice to the parties is proved on two grounds; first,
because the writ commands it, and the sheriff returns, that he has
executed the writ according to the command thereof; and, secondly,
because the plaintiffs issued the writ, they were present by
attorney when it was returned, and at that time never complained.
But even if no notice had been given, there was another remedy; and
the objection comes too late on a writ of error. 5 Com. 301.
5th. That the writ of partition directs and premises to be
divided, assigned and delivered; it is recited in the inquest; and
the sheriff returns that he has obeyed the command of the writ.
When, therefore, the inquest declare that they have allotted the
moieties to the respective parties, it must be deemed an allotment
according to the terms of the command and authority under which
they acted.
On the last day of the session, the COURT mentioned, that some
doubts had arisen, which would prevent a decision of the cause till
the adjourned session; but that, in the meantime, for their own
information, they should direct a certiorari to issue to the Court
of Common Pleas of York county, to inquire whether any precept had
been given, authorising the writ of execution, or judicial writ of
partition, to issue; and if so, to return it. [
Footnote 2]
Cur. adv. vult.
At an adjourned session, held on the 17th of January 1800, the
COURT unanimously affirmed the judgment of the Supreme Court.
Judgment affirmed.
Footnotes
Footnote 1 Though there was
no other description of the fishery, yet the defendant's counsel
insisted, that both the ferry and the fishery were appurtenant to
lot No. 1; and the assertion seemed to be supported, on an
inspection of the draught to which the inquest referred. The ferry
was kept on a part of lot No. 1; and the fishery, being located
within the boundaries of the same lot, would be 'at or near the
ferry.'
Footnote 2 Lewis suggested a
doubt, whether a certiorari could issue, per saltem, to the Common
Pleas, overleaping the Supreme Court, on whose judgment the writ of
error was brought; but he agreed to give effect to any mode, that
might be taken to ascertain the fact in question, and to consider
any precept that issued, as regularly annexed to the record.
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