delivered the opinion of the Court:
Two assignments of error arc stated: ist. That it was error to grant the motion of the appellee to vacate the return of the marshal showing the satisfaction in full of the judgment ; 2d. That it was error to grant the motion of the marshal for leave to withdraw and amend his return.
The appellant, in his brief and oral argument, discusses also two other questions, not raised by these assignments : 1st. That the declaration in the case shows no cause of action, and that consequently the judgment was null and void, and no further proceedings can be had thereon; 2d. That the plaintiff, by discontinuing the suit as to Fraser, the principal in the bond, thereby discharged the others, who wrere merely sureties. But these two questions, even if the}'- were properly raised, are without substantial value. With reference to the first of them, the appellant seems to be under a misapprehension. He does not state wherein he conceives the declaration to be defective ; but we infer from some expressions in his brief that he construes the bond here sued on to be a bond only to enter into a contract in the event that a contract should be awarded. This is not a correct understanding of it. The specific condition of the bond is, not only that Fraser would enter into contract, if his bid were accepted, but likewise that he should perform the service in accordance with the contract; and the breach assigned is that he did not perform the service. The objection, therefore, that the declaration does not state a cause of action is untenable.
Equally untenable is the. objection that, by the discontin*558uance of the suit' as to the principal, Fraser, the plaintiffs thereby released' the other defendants as sureties, and were precluded thereafter from further prosecuting the suit as to them. The discontinuance as to the principal, while continuing in the attempt to hold the sureties, was undoubtedly a most extraordinary proceeding, and one greatly calculated to excite comment. But we cannot hold, in the absence of explanation, that it was sufficient to release the sureties. The discontinuance of a suit is not the release of the claim. Such discontinuance could not operate as a bar to any other suit. The plaintiffs might have elected to sue the two sureties alone in the first instance ; and yet that would not have operated as a release of the principal. The discontinuance of the suit, without satisfaction of the demand and with freedom thereafter to the plaintiffs to institute another suit, could have no greater effect.
The two formal assignments of error may be regarded as merely raising the one question, whether the court had the right to vacate the levy, sale, return, and satisfaction made by the marshal, upon proof that all these were made by him under a mistake of fact. For that they were made under a mistake of fact in this case, must be conceded, inasmuch as the affidavits filed in support of the motions so allege and show, and there is no attempt on the part of the appellant to controvert the showing. Indeed, there is no controversy whatever between the parties as to the facts. The only controversy is, whether upon the conceded facts, the court had authority to enter an order for leave to the marshal to withdraw and amend his return.
It is argued by the appellant, that the appellee’s remedy, if any there exists, is in equity. It is true that there is plenary power in a court of equity to remedy mistakes of fact, and that its processes for that purpose are more ample and more elastic than those of common law. But it is too late at this day to question the authority of common law courts to amend their records and the proceedings before them, under proper limitations, so as to conform to the *559truth. Amendment of pleadings may be allowed at any time before verdict; amendment of a j udgment is proper at any time during the term at which it was rendered; and there has never been any limitation of time prescribed for the amendment of proceedings upon execution. See Freeman on Executions, sec. 359, and cases cited. Now, where the facts are plain and simple, and uncontroverted, and the relief sought can be had by the order of the court upon motion, it is not apparent why a party should be driven to the trouble and expense and delay of a suit of equity, when equity cannot develop anything more than is manifest in the record upon the motion. In most cases of this kind the power to grant relief is concurrent in the courts of common law and the courts of equity. Supervisors v. Durant, 9 Wall. 736; Morse v. Dewey, 3 N. H. 535; Rex v. Mayor of Grampond, 7 T. R. 699; Porter v. Goodman, 1 Cow. 413.
Turning to the merits of the case, it is beyond question that the alleged levy and sale presumed to have been made by the marshal, although made at the instance of the attorney for the plaintiffs, were absolutely null and void ; since it has long since been decided that, by the common law, as it exists in the District of Columbia, no property but that in which the judgment debtor has a legal title is subject to execution at law. Van Ness v. Hyatt, 13 Pet. 294. The judgment was not a lien on the property sought to be reached, or on the defendant's interest therein ; the property was not subject to levy; and no levy upon it could have been validly made. If the levy was null and void, there could have been no valid sale, and no title could have been conveyed by the deed which purported to have been executed in pursuance of the sale. The marshal received no money whatever as the result of the pretended sale, and he paid no money upon the judgment in the case. His whole proceeding, from beginning to end, through no fault of his own, it is true, but as the result of misapprehension and mistake, was a baseless fabric of unreality; and his return, which stated the contrary of all this, was a statement *560wholly without foundation in fact. The defendant had no property of any kind taken from him, and his status has not been in the slightest degree changed ; and the plaintiffs have received nothing whatever in satisfaction of their judgment, notwithstanding the statement of satisfaction made by the marshal in his return, Is there not power in the court to correct the manifest, error, and to direct the marshal to amend his return so as to make it conform to the truth ? We think there is; and we think that, when permission for ' leave to amend is asked by the marshal or is sought by any of the parties to the cause, it should always be granted, where the amendment is in furtherance of the ends of justice, and may, in the exercise of an enlightened discretion, be effected without injury to anyone. See Freeman on Executions, sec. 358, and numerous cases cited in the notes. The criterion of the limitation of the power would seem to be, from all the authorities, that it would be exercised except where the exercise of it would injure the rights of innocent third parties. Brooks v. Hodson, 7 Man. & Granger, 529; Webber v. Hutchins, 8 Meeson & Welsby, 319; Ohio Life Ins. Co. v. Urbana Ins. Co., 13 Ohio, 220. There are no rights of third parties to be affected by the amendment in the present case.
We do not understand that this position, as a general-rule, is controverted by the appellant. The argument is, that the plaintiffs here are concluded by the action of their attorney in directing the levy and sale, and by taking to themselves, by procurement of their attorney, a deed of conveyance of the property supposed to have been levied upon and sold.
But in this conclusion there is certainly no equity or justice. The’ levy and sale were absolutely null and void; the deed to the plaintiffs conveyed nothing whatever; there has been nothing realized from the sale notwithstanding the pre-tekee to the contrary; and there has been no satisfaction of the judgment, or of any part of it, notwithstanding the erroneous entry to that effect made by the marshal; and no rights *561■of third persons have intervened. The whole proceeding upon the execution is a mistake, without any foundation in fact; and it would not be in furtherance of justice to permit it to stand, when it is conceded by all the parties and by the officer himself to'have been wholly erroneous.
In the cáse of Griffin v. Thompson, 2 How. 244, 257, the Supreme Court of the United States held, that it was the right and the duty of a court in such cases to correct the irregularity of its officer; and it added that the marshal “ is ■properly the officer of the law rather than the agent of the parties, and is bound to fulfil the behests of the law; and this too without special instruction or admonition from any person.” From which it would follow, that even if he had been misled by any of the parties, or their attorneys, he has the right to correct-his mistake; and there is no reason why the parties themselves should not move to correct the error which they have superinduced, unless their action has operated in fraud of'the rights of others, or adverse parties cannot be restored to the position in which they were before the erroneous action was taken.
To the contrary have been .cited the cases of Freeman v. Caldwell, 10 Watts, 1, and Goodbar v. Daniel, 88 Ala. 583, and the doctrine of caveat emptor as applicable to purchasers at judicial gales. , Undoubtedly the general doctrine is well established that at judicial sales there is no warranty of title by the officer, and the purchaser only takes such title as the officer can give him;. and that if the vendee is deprived of the property by title paramount, he can have no recourse to the officer who has made the sale or to the court to have the sale vacated in his favor. He should have inquired ber fore he made the purchase. And it is only this doctrine that- is affirmed by the case of Freeman v. Caldwell. But even if this doctrine should be held to apply to the plaintiff in the action, when he becomes a purchaser,-which, under the authorities, we must regard as somewhat doubtful, and which does not seem to be demanded by any imperative, rule of law, the distinction is equally as well established *562the rule, contrary perhaps to what was held in the case of Goodbar v. Daniel, supra, that, inasmuch as a sale under execution always assumes to be of all the title and interest of the defendant in the writ, if such sale from any cause is so void that it cannot transfer this title and interest, the purchaser is not bound by his bid. Commissioner v. Smith, 10 Watts, 392; Boggs v. Hargrave, 16 Cal. 559; Post v. Leet, 8 Paige, 337; Brown v. Frost, 10 Paige, 243; Shiveley v. Jones, 6 B. Monroe, 275; Freeman on Executions, sec. 301.
There was here a pretence in the advertisement of sale that the marshal would sell all the right, title and interest of the judgment debtor in the property supposed to have been seized under the writ of fieri facias issued in the case; the sale and the deed supposed to have been executed in pursuance of the sale were ineffectual to transfer to the purchaser the debtor’s interest in the property, which was an equitable fee-simple ; and the purchaser, therefore, did not get what the debtor had and what the sale assumed to transfer. We do not think that the doctrine of caveat emptor has any application in this case.
We are of opinion that there was no error in the order appealed from, and that this order must be affirmed, with costs. And it is so ordered.