Sterling v. Emick

1 Tapp. Rep. 326

• Court: Stark County Court of Common Pleas
• Decided: April 15, 1819
• Status: Published

Opinion

President

It appears, by the officer’s return, that the execution was levied upon the northeast quarter of section number twenty three, township number ten, of range number eight, and the appraisement returned into the Clerk’s office is of the same quarter section, at eight dollars per acre. The objection to this return is, that it does not state the number of acres taken in execution, and to the appraisement that it does not state the gross amount. Neither of these objections have any weight in them; it is not necessary for an officer levying an execution on a tract of land, to measure the exact quantity of it; nor is it necessary that appraisers should know the true number of acres in a field or quarter section, in order to give their opinion on its value per acre: id certum est quod certum redi potest. When a sale is made, it will be soon enough to ascertain the exact quantity of the land, and the amount to be paid for it by the purchaser. A writ of venditioni exponas must recite the execution, by authority of which the levy was made, and also the return on the execution. This writ omits both* and is therefore substantially defective: it is not an order to sell the quarter section of land which was taken in execution and appraised, but an order to sell the defendant’s goods and chattels, lands and tenements generally, whether they have been taken in execution or not. The writ is not irregular merely, but void. — Motion granted.