Bixby v. Rowe

2 Mich. N.P. 152

• Court: Circuit Court of the 36th Circuit of Michigan
• Decided: April 15, 1871
• Status: Published

Opinion

By the Court,

Brown, J.

Can a Sheriff amend his certificate of sale of real estate; and if he can, will the Court permit him to do so, after his term of office has expired and he is no longer holding that office ?

J. W. Brees°, for the motion, contends that it is settled that a Sheriff may amend his certificate of sale of real estate by leave of the Court. 1 Doug. Mich. R., 42. This was an attachment suit and judgment by default, and the defendants movecl to set aside the judgment and all subsequent proceedings, for irregularities, and the Court refused the motion, assigning as one ground therefor that the Sheriff had a right to amend his return in the Circuit Court. 2 C Laws, page 1201, § 4418.

It has been held that a Sheriff may amend his certificate of sale whore he has omitted to describe the parcel sold. 1 Cowen, 430.

He may also strike out a parcel which should not have been sold. 8 Howard’s Pr., 79. A casé in 1 Cowen, 218, gives a form of order of amendment and is very similar to the present case, showing that the late Sheriff may make an amendment by leave of the Court.

The recitals in a Sheriff’s deed are amendable. 13 Wend., 29, and so of variance between the judgment and execution. 4 Wend., 462.

There seems to be abundant authority to the effect that a Sheriff who made the sale or his successor in office may make a deed. 2 C. Laws, page 937, § 3151; 3 Mich., 436; 3 Cowen, 75.

As to when a Sheriff may complete execution process in his hands, see 1 C. L., page 210, § 431; page 207, § 418.

As to re-sale on execution by Sheriff, after he. had gone out of office, see 5 Hill, 228; 4 Barb., 180.

•This motion is made on the part of the plaintiffs in execution, and the question of laches does not arise.

The motion is granted.