#### ISRAEL H. JUDGE *vs.*STEPHEN M. HOUSTON.

Where A. Uvea upon land together with B., who claims the'title, and the land is sold under an executiqn against A. in an action of ejectment, by the purchaser under the execution, brought against A., the latter cannot protect himself from the action by setting up the title of B.

But, by Pearson J., if B., in such a case, after judgment, can satisfy the Court, by .proper aSdavits, that he had a *bona fide*claim of title and is in possession, the Court has power to order the writ of possession not to be issued until the plaintiff brings an action of ejectment against him.

-A sheriff is not bound, like a constable, to any particularity in his return of a lev-y on a *fi fa.*

Although a deed is macle to Include more land than was sold, it is not, on that account, fraudulent, but it is only void for the excess.

‘The cases of *Thomas*v *Orrell,*5 Ire. 569, *Gwynn*v *Stokes,*2 Hawks 235 -and *Bledsoe*V *Smith,*2 DeV. 314 cited and approved.

Appeal from the Superior Court of Law of Duplin County, at the Fall Term 1850, his Honor Judge Ellis presiding.

This was an action of ejectment.

The plaintiff declared for three tracts of land, but abandoned his claim for one tract No. 3. He claimed title to the said lands as purchaser at Sheriff’s sale, under execution a•gainst the defendant. To prove title in his lessor, he offered a deed of bargain and sale from the Sheriff of Duplin county, purporting to-convey the premises in question, which re* cited, that the said land had been sold under a *jifa,*running against the property of the defendant. He then offered in evidence the *ji. fa.,*recited in the deed, against the defendant, and in favor of one William D. Pearsall, which was duly returned into the office, with the following endorsement: “ Levied this execution upon the Lands of Stephen ,V1. Houston, on the east side of the North East river, adjoining the lands of Stephen M. Grady and others, and *109after due advertisement, sold the land levied on, on the 3rd Monday in March A. D. 1840, being- the sixteenth day of the month, at which time and place, Israel H. Judge became the last and highest bidder at the sum of one hundred and fifty dollars, which is applied to this execution.

JOHN E. HUSSEY. Sheriff.

By James Maxwell, D. S.”

The plaintiff further introduced the record of a judgment, in the Court of Pleas and Quarter Sessions for said County, in favor of said Pearsall, and against the defendant, and upon which the said *Ji. fa.*was regularly issued.

The plaintiff then introduced a witness, who testified, that the defendant was living upon tract No. 1. set forth in the declaration, commonly called the home tract, at the time of the service of the said declaration, and that he did then and had, several years before, and since that time, cultivated tract No. 2, as claimed, in Turpentine, and used the standing timber for procuring turpentine; that the said tract did not adjoin No. 1, but was two miles distant.

The defendant objected to the recovery of the plaintiff, 1st, because two sisters of the defendant were living upon the *locus in quo,*at the time of the service of the declaration in ejectment; claiming title in the same: that the defendant was merely living with them upon the premises at the time of the sale, and that they had a life estate in po-session in the said premises and were still living. But the Court refused to hear evidence to sustain this position, for the reason that this defendant, being the defendant in the-execution, was estopped from denying title in himself at the time of the sale, and that living then (at the sale) upon the premises, and continuing there until the service of the declaration, was estopped from setting up possession in his said sisters in the present action.

The defendant objected ándly : llufl the levy was too vague in its terms and too uncertain in its description to *110include No. *2.*which was two miles distant from the other, and did not adjoin the lands of Stephen M. Grady, as admitted, although it lay upon the east side of North East River, and in the neighborhood of Stephen M. Grady, and that the said tract not being included in the levy, no title passed to it by the sale and sheriff’s deed. The Court reserved the point.

The defendant objected 3dly: that the sheriff’s deed was fraudulent and void in the following particulars, 1st: The deed included more land and greater estates than were sold; 2d!y : More laud was sold than was levied upon. To sustain this position, the defendant examined one Wallace, who testified, that he was present at the sale under the execution and heard the deputy proclaim that he would sell only the tract oí land on which the defendant lived at the time, which is the same as tract No. 1, in the declaration, and that he reserved the life estate of his sisters. This witness thought the lands worth $SJ000.

In this connection, James Pearsall was offered by the defendant, who swore, that he was present at the sale, and heard the officer offer for sale “ the lands of Stephen M. Houston these were the words used by the officer. He said he heard it rumored among the bystanders that there was an encumbrance upon the lands, but did not hear it as coming from the sheriff’s officer. Maxwell, who made the sale, was then offered by the plaintiff to prove the *bona fide*character of the sale, together with the circumstances connected with the levy and the sale, and to explain them. This witness was objected to by the defendant, upon the .•ground that his action in the matter was set forth in the return upon the execution and sheriff’s deed, and he could ionty be heard to speak through them. The Court overruled this objection, and the witness was examined. He ■swore that he was the officer who made the levy and sale; th t he was not at tli'e time acquainted with the exact-location of the defendant’s lauds, he understood they were situ*111ated on the east side of *the*North East River, in *the*neighborhood of Stephen M. Grady, and adjoining him ; that it was all wild or woodland, except the tract on which he lived, and that tract did adjoin the said Grady, but the other did not,, as he had subsequently learned. That, when he made the levy, which was endorsed upon the *fi. fa.,*he intended to levy upon all the interest of the defendant in all the lands he-had in the neighborhood; That he sold all the lands in dispute, and which were before levied upon, and were the same as those set forth in the sheriff’s deed offered as evidence. That he made no reservation of any life estate of the defendant’s sisters nor any other reservation, and that he never heard of that or any other incumbrance upon the land until a subsequent period. That he sold the land at the Court House with a large number of persons present, and to the highest bidder.

The Court charged the Jury, that to enable the plaintiff to recover, it was sufficient for him to show a judgment against the defendant, an execution thereon with a levy and sale of the lands claimed and a sheriff’s deed to himself, and possession in defendant at the time the declaration was served : That possession was made out, if they believed the defendant lived upon one tract of the laud, and used the other, by way of cultivating turpentine upon it, or exercised ownership over it by any other acts or uses. Upon the question of fraud, the Court charged the jury that any combination between the Sheriff and Plaintiff, as purchaser, calculated to injure the sale of the property, would avoid the deed and all other proceedings under the execution, and no title would pass to the plaintiff thereby. That any corn*-bination to include more land in the deed than was sold would render it void. That the deed could convey title for no more and no other lands to the plaintiff, than those actually sold at the Sheriffs sale. The jury returned a ver-, diet for the plaintiff for both tracts. The defendant moved and obtained a rule ior a new trial, for misdirection to the *112jury and admission of improper testimony and exclusion of legal evidence and because tbe Court reserved the question relative to the levy, instead of leaving it to the jury as a question of fact. The Court overruled these various exceptions, and being of opinion with the plaintiff upon the point reserved — that is: That the terms of the levy were not so vague as not to be capable of including the land in dispute, and considering the question as to whether the particular lands in dispute were included in the levy as having been passed upon, as a question of fact by the jury, discharged the rule and gave judgment for the plaintiff; from which the defendant appealed.

*D. Reid*for the plaintiff.

*W. Winslow*and *Washington*for the defendant.

Pearson, J.

The lessor was a purchaser at sheriff’s sale under a *fi.fa.*in favor of one Pearsall against the defendant. It was proved that the defendant was living on th© land at the time of the sale, had been living on it for several years before, and was still living on it.

The defendant offered to prove, that his two sisters had the possession, at the time of the service of the notice, they being entitled to a life estate, and that he was living with them merely as their guest, without in fact having the possession, or any title, except the reversion. This evidence was rejected, and the defendant excepts. There is no error. *Thomas*v Orrel, 5 Ire. 569, is directly in point. The defendant and his two sons were living together ; it was held, that “he had no right to assert title for them, or rather to set up their title and their possession with him, to protect himself.”

The action is for two tracts. No. 1, (as it is called in the case,) was the tract on which the defendant lived. No. *2*was situated near No. 1, but did not adjoin it, and was cultivated for turpentine only. The levy endorsed on the *ft.*
      *113
      *fa.*is in these words: *“*Levied this execution on the lands of Stephen M. Houston, on the east side of North East River, adjoining the lands of Stephen M. Grady, and others, and, after due advertisement, sold the land levied on, &c.”

The defendant’s counsel objected, that the levy was too vague and uncertain in its description to include No. *2.*This question was reserved. The plaintiff called the officer who made the levy, to explain the position of No. *2*in reference to No. 1, to the lands of Grady, and the North East River. This was objected to, but was received; for this the defendant excepts. The Court decided the question reserved for the plaintiff; for this, the defendant excepts. There is no error.

These points were made under a misapprehension of the nature of a sheriff’s levy under *taf.fa.*The defendant’s counsel did not advert to the difference between such a levy which need not be returned, and the levy of a constable which creates a lien, must be returned, and must have a certain degree of particularity, so as to identify the land, and enable the sheriff to know which land to sell under the *venditioni*exponas, and of which notice must be given. None of these things is required in reference to a levy by the sheriff under *af.fa.*It is not easy to perceive why á levy is required when the land is sold under theyi./a.

The defendant insisted that the sheriff’s deed was fraudulent and void, because it included more land, and greater estates than were sold.

One Wallace, a witness for the defendant, swore he was at the sale, and heard the officer proclaim, that he would sell only the tract of land, on which the defendant levied, and that he reserved the life estate of the defendant’s sisters. One Pearsall and the officer swore, that all of the land in dispute was sold, and there was no reservation of a life estate. The Court charged, “ that any combination between the sheriff and the plaintiff, as purchaser, calculated to injure the sale of the property, would avoid the deed — and any such com*114bination, to include more land in the deed, than was 'sold, would avoid it. The deed could convey title for no more ■and no other lands than those actually sold.”

The defendant moved for a new trial, because *of misdirection.*There is no misdirection, of which he has a right to complain. The first proposition was uncalled for, because 'there was no evidence of a combination to injure the sale ■of the property. The second, unless qualified by the latter part of the sentence, -is too broad, for although a deed is made ‘to include more land than was sold, it is void only for excess; this however did not prejudice the defendant.

The -only difficulty in law is in consequence of an *omission*to charge in reference to the alleged reservation of a life estate. There is no exception for this omission, and we are therefore obliged to infer, either that the charge was satisfactory on -this question, or that the defendant did'not wish to raise the question before the jury, and did not-object to the omission, being satisfied that the fact was against •him.

We should have no doubt of the correctness of this inference, but for the fact, that the evidence in regard to 'the alleged reservation is stated, which Ivas unnecessary. Such, statements, however, are very common, and we cahhot .permit it to influence our decision. If the reporter did not omit a great deal of surplusage, his books would be quite voluminous. The other two judges prefer to rest the first point, upon the decision in *Thomas*v *Orrel.*It is proper forme to say, in that case'collusion between the father and son is taken for granted, and I acquiesce in the decision upon the assumption, that, after judgment in this case, if the'sisters of the defendant'can satisfy the court by proper affidavit, that they have a *bona fide*claim to a life estate andaré in possession, the court has power to order the writ of possession not to be issued, until the plaintiff brings an ..action of ejectment against them.

*115I think the court has this power,.and put my opinion on the ground, that awarding a writ of possession is no part of,' the original judgment in ejectment,.but is a new incident,, superadded by the court in order to do complete justice,.and is therefore under its control, so that, although an execution, for the damage and costs- necessarily follows the judgments,, being what is demanded by the- writ and declaration, yet the writ of possession may be refused, if this “ creature of the Court” is likely to be made an instrument of injustice.”’ 3 Blackstone Com. 199.

If the Court has not this power, I should question the. decision in *Thomas*v *Orrel,*that the plaintiff in ejectment entitles himself to judgment, by showing that the-defendant was “an occupant of the premises,” if it was proven, that he was living then, as the guest or servant of the real owner; for when two are living in the same house, the law adjudges the possession to be in the one who has title; *Gwyn*v *Stokes,*2 Hawks, 235. Under the writ of possession, it is the duty of the sheriff to put the defendant and *all other -persons off of the land,*and if the writ issues in this case, the sisters of the defendant will, by process of the law, be turned out of “house and home,” without an opportunity of being' heard. It is true, they may, by an action of ejectment, regain the possession, but that cannot compensate for the inconvenience and injury resulting from the loss of it. Suppose this case in trespass against the sheriff, they can recover damages for the eviction, (which I deny, for he does only that which the writ commands him to do •) this will be but a poor consolation for the injustice inflicted on them, by the order of the Court, to which they are obliged to submit. I cannot bring my mind to the conviction, that such oppression can be a legitimate consequence of the formal action of ejectment, which, it is said, is “ so moulded and fashioned by the Courts, as to do complete justice in every case.” In *Bledsoe*v Smith, 2 Dev. 314, it is held, that a judgment against the casual ejector *116will be set aside, and if a writ of possession has been executed, a writ of restitution will be issued when it is proven that the notice has not been served, and, of course, the same will be done, when it has been served on one who is *not the person in possession.*It is a settled rule in this State, not to enter judgment against the casual ejector, unless it be proven, that the person on whom the notice was served is the person in possession. In the above case, the Court remarks, *“*If the writ of *habere facias possessionem*is issued) every person in possession claiming title to the land, who. might have a good title to it, would be turned out of possession. This would be iniquitous and oppressive, and a gross violation of the principle, that no man shall be deprived of his property, without a hearing — since it is in order that the fictions in this action shall do no wrong, that the Courts will not permit judgment to be entered against the easual ejector, unless it is made to appear that notice has been given to the tenant in possession. The affidavit should be positive, that the person on whom the notice has been served, was the *tenant*in possession or acknowledged himself to be so. This rule was adopted to protect *third persons,*and if, by any means, a judgment by default is entered and a third person is turned out of possession, upon its being made to appear that the person served with notice was not the person in possession, the Court will order a writ of restitution, to prevent the rule from being evaded. The right to order restitution necessarily implies the right to prevent the recovery in the first instance — and the person in possession is permitted to object, to the judgment against the casual ejector, and to prove error contrary to the admission of the person served with notice, that he is not the person in possession.

Our question is a new application of the same rule to a different state of facts. Suppose the person served with notice admits himself to be in possession, and defends the action, and judgment is given against him. Are the rights of a *117third person to be affected by that circumstance? and does he thereby lose the protection of the rule? If so, on what ground? It is said, “why did he defend?” and collusion will be implied from the fact of his doing so. It seems to me, this is a *non seqnitur.*The person in possession is not presumed to have control over his actions, and the right to say, *“*you must not defend, for I will thereby be precluded from showing my title, and that I am the person in possession.”

So far from furnishing an inference of collusion, it seems to me the inference is the other way, that the plaintiff is attempting a fraud on the Court. For instance, in this case, the sisters of the defendant could not prevent his making defence, whereas the plaintiff had control over the process, and might have had the notice served on them, so as to allow them to be made defendants, and, by ml doing so, he gives an indication, that he preferred contending with one *“ whose hands are*tied,” rather than with those who are at liberty, and can make full defence. At all events, if there be a presumption of collusion, it cannot be conclusive so as to exclude the sisters of the defendant from showing, after the judgment against him, that they have a *bona fide*claim, are in possession, and that he was living with them as their guest or servant, and consequently that a writ of possession ought not to be issued, by which they would be turned out, without haying had an opportunity to prove their title. If this be not so, the result of our cases is, that if my land is sold, tinder an execution against my overseer, and he defends an action of ejectment, I will be turned out of possession, with the consoling assurance, that I may bring ejectment, and regain it. Unless the Court can protect third persons in the way pointed out, this strange corollary necessarily follows, from the nature of the action of ejectment, and the doctrine, that the purchaser at Sheriff’s sale, as against the defendant in the execution, is entitled to judgment *118by showing an execution, a sale, a Sheriffs deed, and that the defendant was *lining on the land.*

Per Curiam. Judgment affirmed»