#### *Richard Maddox vs. Hewlet Sullivan, John Mahorn, Samuel Maddox, et al.*

The testimony of one witness, though in some degree supported by corroborating circumstances, *held*insufficient to disprove defendant’s answer.

Where the testimony of one witness and corroborating circumstances are relied on to disprove an answer, the circumstances must, it seems, be such that, standing alone, a reasonable conclusion, as to the truth of the fact, might be deduced from them.

Mere irregularities or omissions will not vitiate a sheriff’s sale. Where, therefore, a sheriff sold land which had not been advertised twenty-one days, *held*that the sale was valid.

So also, where a sheriff, having a number of executions against a defendant, levied on all his property, consisting of a plantation, slaves, &c., but made no entry of the levy except on the oldest execution, and, at the proper time, sold, first, the slaves, the proceeds whereof amounted to more than sufficient to satisfy the oldest execution, and then the plantation; *held*that the sale of the plantation was valid, although there was no entry of the levy on the junior executions under which the sale was in fact made.

*Before*JohnsoN, Ch. *at Abbeville,*

*June,*1845.

*The Chancellor.*The defendant, John Mahorn, having become largely indebted, judgments were obtained against him, by confession or otherwise, at the suit of divers creditors, to a large amount. The first in order of time was at the suit of C. T. Latimer for the use of Samuel L. Maddox, for $642, besides interest and costs : an execution on which was lodged in the sheriff’s office on the 19th day of April, 1841 ; and after several intervening judgments, was one in favor of the complainant; execution on which was lodged in the sheriff’s office on the 11th January, 1843.

The defendant. Sullivan, had also obtained a judgment against him in Laurens district, and execution was lodged in *the*sheriff’s office there, on the 3d September, 1842, and in the sheriff’s office of this district, on the 3d April, 1843. In all, I think, there were about fifteen judgments against him, on which executions had been lodged in the sheriff’s office of this district; but the order of *-priority*is unimportant to the determination of this cause.

In the sheriff’s return on the execution at the suit of Lati-mer for the use of Maddox, first above named, is endorsed a levy on all the valuable property of the defendant, Mahorn, including the plantation on which he lived, four slaves, live stock, furni*5ture, ífec.; but there was no entry of the levy on any of the other executions.

On the sale day in April, 1843, *being the third day of the*month, the sheriff offered for sale at the court house door, first the slaves, the sales of whom amounted to more than sufficient co pay Latimer’s judgment. He then offered for sale the tract of land levied on, which was bid off by the defendant, Sullivan, at the price of $200. The rest of the property levied on was sold on the day following, at the residence of the defendant, Ma-horn ; but the whole proceeds of the sales were swallowed in satisfying judgments and executions prior in point of time to that of the complainant, and entitled to precedence of it.

The bill charges that the lands were sold at a greatly inadequate price, in consequence of a corrupt agreement between the defendants, Hewlet Sullivan and Samuel Maddox, not to bid against each other : and that one of them should bid it off for their *joint*benefit, and that they should share the profits ; and therefore prays that the sale may be set aside.

This charge is distinctly and circumstantially denied in the answer of the defendant, Sullivan. Samuel Maddox, although a party defendant, has not answered ; but was called by complainant to prove the agreement between Sullivan and himself, charged in the.bill.

He testified that ho was present at the sale ; and that after the negroes were sold, the sheriff enquired of him what he intended to do about the land. To which he replied that the sales of the negroes were sufficient to pay Latimer’s execution, to which he was entitled, and he had no further concern about it. The sheriff, notwithstanding, determined to sell ; and the j witness enquired of him whether, if he bid it off, he, the sheriff, would wait until the sale of the rest of Mahorn’s property, which was to take place the next day, for the money : who replied that he would; and witness, therefore, contemplated bidding for it: knowing, however, that Sullivan, as one of the judgment creditors, was interested to make the land bring its value, he went to him and said, “ *it is not worth while for us to bid against each other.”*To this he made no direct reply, but said, *“then I’ll bid f*and but for this, witness would have bid more for the land, having money enough at home. That on the evening of the same day, witness offered to pay Sullivan one-half of the sum he had bid for the land; but he declined accepting it, saying that he had enough of his own, and that another time would do as well; *6and that on the morning afterwards, Sullivan told him that he would call on him at his own house, when they would determine what they would give Mrs. Mahorn, the wife of the defendant, Mahorn, for her right of dower in the land. Besides this, there was no proof of the agreement; and the only circumstance relied on in support of it, was the fact proved by several witnesses, that the land was worth $1000 or $1200. It would be unprofitable to enquire here whether if the agreement charged in bill had been fully proved, it would have vitiated the sale; because the fact of the agreement has not been sufficiently proved. The answer of the defendant, as before stated, positively and circumstantially denies its existence.

The old rule was, that two positive witnesses -were necessary to disprove the answer of the defendant: otherwise, it is'said, as in perjury, there is only oath against oath; and the Court will not undertake to determine between them. That strictness is now dispensed with, and it is held that one positive witness and other strong corroborating circumstances are sufficient. What these circumstances shall be, can’t be defined by rule; but I apprehend they must be such that, standing alone, a reasonable conclusion as to the truth of the fact might be deduced from them. Here, the inadequacy of price is the only circumstance in support of the evidence of Samuel Maddox, and that, standing alone, is not sufficient evidence of fraud, especially in judicial and other public sales, if otherwise perfectly fair. There are numerous cases in which such sales have been sustained, when the price paid was very grossly inadequate — in some, where it was less than one-hundredth part of the value. The allegations of this bill are not, therefore, supported by sufficient evidence.

The complainant relies on two other grounds, to set aside this sale. The 1 st is that the sheriff neglected to advertise the land the length of time required by law, before the sale. The sale, as before stated, was made on the 3d day of April, 1843, and the entry of the levy on the execution bears the date of the 14th March preceding ; and the deputy who made the levy, and the sheriff’s clerk who prepared the advertisement, both testified that, according to their belief, the entry bore the true date, and that the advertisement of the sale was posted up at the court house, about sun down, or a little after, that day. But the great preponderance of the evidence is, that the levy was not made, nor the advertisement put up, until the day after *{fifteenth March.}*The Act of 1839 directs the sheriff to advertise real estates “ at *7least *twenty-one days before the day of sale?*The time must, therefore, be computed as exclusive of the day of sale. Excluding that, and including the day on which the advertisement was set up, only twenty days could have elapsed between that and the day of sale. The advertising was irregular in another respect. The same Act requires that the sales of all property taken in execution shall be advertised at the court house and two other public places, if there is no public gazette published in the district ; and it is conclusively proved that these were not advertised at any other place but *the court*house, until after the 15th March.

The 2d ground is, that the only execution levied on the property, (Latimer’s execution) was satisfied, by the sale of the slaves, before the land was sold, and therefore the sale was void, and the fact has been before stated.

.Both these grounds are based on mere irregularities or omissions of the sheriff, in the discharge of the duties of his office; and that these do not vitiate a sale of property made by him, has been so long and so fully settled, and upon such well defined principles, as to render all commentary upon them unnecessary: See *Turner vs.*McCrea, 1 N. *&*McC. 12; *Cain vs.*Maples, 1 Hill, 304; *Gist vs. McJunkin,*1 McM. 342.

In reference to the second ground, it may be further remarked, that all the executions were in the sheriff’s hands, at the time that of Latimer was levied, and having possession of the property, his duty required that he should retain it until they were all satisfied, or the property exhausted.

There is no magic in the mere indorsement of the levy on the execution, although in strictness, and as a means of preserving the evidence of it, the sheriff ought to have made it: and having regard to the substance rather than the form, the Court will presume that done which ought to have been done.

The complainant’s bill is therefore dismissed with costs.

The complainant appealed, and moved to reverse the decree of the Chancellor, on the following grounds :—

1st. Because the direct and positive testimony of the witiness, Samuel L. Maddox, as to the combination between himself and the defendant, Hewlet Sullivan, strengthened and confirmed by the other corroborating circumstances of fraud, was sufficient to entitle the complainant to the relief prayed for.

2d. Because, when the sheriff sold the land, he had no legal authority to sell, inasmuch as the only execution which had been *8levied, (that of Latimer for S. L. Maddox,) was previously satisfied out of the proceeds of the sale of the personal property of the defendant, Mahorn.

3d. Because the sheriff sold the land without having levied upon and advertised the same, as required by law, and the sale was therefore void.

4th. Because the sale having been made by the sheriff under an execution which had been previously satisfied — without legal notice of the same — and the proof of the fraudulent combination between creditors at the sale, with the corroborating circumstances, and the gross inadequacy of price — all taken together, make such a case of unfair advantage as, in favor of *judgment credi*tors, without actual notice, will avoid the sale.

*Curia, per*Dunkin, Ch.

This Court concur in the decree of the Chancellor, and the appeal is dismissed.

Hauper and Johnston, CC. concurred.

Johnson, Ch. absent from indisposition.

*Perrin*& *McGowen*for the motion.