#### Doe on demise of Bryan, *v.*Brown.

From Craven.

An execution will not protect property in the hands of the purchaser, if it issued without any authority ; and in ejectment the purchaser who claims under the Sheriff’s deed, must shew a *judgment*as well as an execution.

Ejectment. — Harvey Bryan died seised in fee of the land described in the Plaintiff’s declaration, he devised it to his son John Council Bryan the lessor of the Plaintiff, who is still an infant.

The Defendant claimed title to the land under a deed made to him by the Sheriff of Craven county, who sold the land by virtue of an execution issuing Irom Jones Superior Court. ,

It appeared from the record of Jones Court, which made part of the case, that a writ had issued against Nathaniel Tisdale and Dorcas Bryan, executors of Hardy Bryan, at the instance of William Coombs, to which the Defendants among other things, pleaded fully administered, and a jury found that the Defendants had fully administered, and on the other issues found for the Plaintiff assessing his damages to ¿S125 and costs.

The Clerk of the Court thereupon issued a paper writing to the Sheriff of Craven, commanding him to summon John Council Bryan the heir of Hardy Bryan, deer by Dorcas Bryan his guardian, to be and appear at the next term of the Court, to shew cause why he should not be made Defendant in the action brought by Coombs, and why there should not be judgment and execution against him. On the return of this paper endorsed 4 made known,’ the Clerk docketed it as a *set, fa.*and the entry made was *“*judgment by default according to *schfa.”*

It also appeared from the records that a Jury had been •impanelled in the suit against Tisdale and Dorcas Bryan but no judgment appeared to have been rendered. The Clerk then issued *ix.fi, fa.*against the goods and chattels. *344lands and tenements of the heirs of Hardy Bryan, recii-ins; therein thai William Coombs had recovered against John Council Bryan. On (his the Sherifflevied on and so],j ^]ie ]a(1(j jn controversy, to the Defendant.

Dorcas Bryan was the widow of Hardy Bryan and mother of John Council Bryan, but was never appointed bis guardian by any Court.

Ham, Judge.

If it be necessary for Defendant to produce a judgment, (and Í think it is) it will be difficult to find one on the record from Jones. A new kind of process has issued, calling upon John Council Bryan, by his guardian, to shew cause why he should not be made party to an action of debt commenced by William Coombs *s*on this a judgment is taken “by default, according to *sci./a.’**thereby meaning the process just spoken of, a process which the Clerk had no right to issue, and on which no person could have a right to enter any judgment. '

Further, it is admitted, that Dorcas Bryan was not the guardian of John Council Bryan ; he was therefore, not a party to the proceeding in Court, liad they been ■ perfectly *regular;*her being a Defendant, in the original suit as an executrix, docs not alter the case j she was not on'that account bound to protect tiie interest of the heir.

I think the proceedings which have been had are altogether void, and that they cannot be made to serve the purposes of a regular judgment or indeed of an irregular one, ( 2 *Hayw. Rep.*73.)

But suppose that a judgment need not be shewn by the Defendant; it is taken for granted, and the strong presumption is that there is one *;*that presumption while it lasts, is sufficient perhaps for the person claiming under the execution, hut like other presumptions, surely it may be done away by proof.

*345In the present case, it is admitted that there is no judgment, unless the record produced shew one. I think it will not do to say that an execution protects property in the hands of a purchaser, if a Clerk thinks proper to issue it without any authority *\*this, it is possible, he may do fraudulently, and the person purchasing, may purchase *honestly;*yet if you say that in such case the purchase is good, you at the same time say that a person may be deprived of property without trial, hearing or notice: to such a doctrine I cannot assent, my opinion therefore, is that the Plaintiff is entitled to judgment.

DaNIRu, Judge.

In the suit which W. Coombs brought against Hardy Bryan’s executors, the jury found that the Defendants had fully administered the assets. Judgment was signed by virtue of the act of Assembly, for *£l&5.*The 2d section of the act of 1784, ch. 11, directs that a *scire facias*shall issue summoning the heir and devisee to shew cause why execution should not issue against the real estate for the amount of such judgment, and if judgment shall pass against the heir or devisee, execution may issue against the real estate of the do . ceased debtor in the hands of such heir or devisee, to satisfy the judgment.

The instrument which is set forth as a *scire facias*in this record does not mention the suit against the executors, the fact of their having fully administered, nor does it state that *any judgment for any amount*had been signed by the Plaintiff — it does not call on the heir to shew cause why execution should not issue againts the real estate to satify *any judgment.*

The return of this instrument and the entry *“*judgment by default according to *sci.fa.”*was all a nullity : there never lias, been any recovery against the heir by William Coombs. It is said that the Defendant being a purchaser at a Sheriff's sale was bound to look no farther back than the execution, as he was no party to the *346suit • that the execution having issued, a sale, by the She* riff under it and a deed given vested the title in the pur* ° chaser.

Lord Chief-Justice *Be Gray,*in delivering his opinion in *Barker*v. *Braham & Norwood,*(3 *Wills.*376,) says, *“*a Sheriff, or his officers, or any acting under his or their authority, may justify themselves by pleading the writ *only;*because *that*is sufficient for their excuse, although there be no judgment or record to support or warrant such writbut if a stranger interposes and sets the. Sheriff to do an act, lie must take care to find a record that warrants the writ and must plead it,* so must the party himself at whose suit such an execution is made.”

In trespass against a Sheriff, it is enough for him to show a writ returned, if returnable; but in trespass against the Plaintiff himself or a mere stranger, they cannot, justify themselves unless they shew there was a judgment as well as an execution, for the judgment may be reversed, ( 1 *Salk.*409, 12 *Johns.*213.)

There being no judgment in the present case *to*warrant the execution, the Defendant derived no title by his purchase.

Per Curiam. — There must be judgment for the Plaintiff.