EWING v. HOUSTON, 4 U.S. 67 (1799)

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EWING v. HOUSTON, 4 U.S. 67 (1799)

4 U.S. 67 (Dall.)

Ewing et Ux. Plaintiffs in Error,
Houston et Ux.

High Court of Errors and Appeals of Pennsylvania.

July Session, 1799

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

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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

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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.

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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.


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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