Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-08-03

0piaions Of The Suprss Court Of ssats q zsHnsssse'
delipersd at Jackson, at April Term 1885,
Elijah Hlns50 VI. Jordan HinsOu


0pisiOns Of tie Suprss Court Of he safe e zsHnsssss'
deiipsrsd at Jackson, at April Term leos'
Elijah Hnssn VS. Jordan HnaOu
Eiectment in the Circuit Court Of Perry county
for 800 acres Of land; judgment for the plaintiff ana
the defendant, Elijah HinsOn, appealed n error 70
this conTt.
The title of plaintifbelow is founded on execu-
ton sale; the defendant jah Hinsen, who was also
defendant in said execution, was In possession ana
residing on said land at the time Of the levy ana
The sheriff, having levied on the land, served the
defendant with the following notice, to wit 81.
Mr.. ELIJAH HINsoN, Sir On the first Monday OF
February next IshaltprOceed to sell your iand' 70
satisfy two executions in favor Of Johu Hipson anu
others-this 2nd day Of January, 1904,
1t appears, also, that the sale was ct the Court
House, and-defendant was present in the town, on
the day Of the sale
His honor, the Circuit Judge, was Of the opinion
and so instructed the jury, that the aotiesis valid
compliance with the Act Of 1893, G. IA. though the
place of sale be not named 1t being, as he states the
universal practice to sell at the Court House door,
under executions.
In these instructions, we are Of opinion, there is
error.
The Act Of 1899, O. a. sec, l, provides thst when
the defendant Is ia actual possession Of the lend eTscu
III Il shall be the duty of the Sheriff. or Coroner,
Lowing such execution, to serve the defendant with
written notice. stating that sal execution is levied
on such land and mentioning the time and place op>
u5ts9 for the sale thereof at least twenty 10y days
previous iher9to,H
TIE act is clear and explicit. that the tine, and
Baee of SALE shall be stated And the intent is that
the defendant may attend the sale, divide the land
into lots il be think proper, and otherwise protect
bis interests in the important proceeding Of selling
out his homestead. 49,
AS to the practice, or usage stated in The instrue
tions may observe, that lift be true, yet it is
not imperative-not required by any siaiute--and
the sale may be appointed at place other than the
Court House and certainly it cannot be permitted,
that mere usage shall dispense with the positive pro-
vision Of the statute, made fer the benefit of the
debtor and in the observance Of which ne is deeply
interested
s.sFhe right conferred upon the debtor by the
statute should not be taken away by construction,
and the duty it imposes on the officer, is plain and
simple and can better be performed, in the manner
required by the statute than in any other manner,
which he might suppose to be equivalent" Richards
rs Weeks II Hum 456.
We conclude that the notice in question, was
wholly insufficient
Second: The defendant was present in the town
on che day of the SALE and thereon argued that
a written notice was not necessary; and Noe Is.
Purehapile, Yer, 2l6, relied upon
That case was decided upon the ground, Of a
''lrqiDer aOhee," and does not apply. In Carny yS
Carny 10 Yerger, 49l the defendant was ''present,
knew of the sale and did not object;" and it was
held to be no waiver of the notice, required by the
statute.
We think it very clear that in the present case,
there was legal notice, and no waiver Of notice.
For this defect in the proceedings, as it now ap
pears, the sale is merely void
Reverse the judgment, aud remand the cause.
Caruthsrs dissented TOTrEN, SpeeiaIJudgs.
Test: NJ. d. WELCH, Clerk