#### Henry Curtis, Appellant, v. Daniel S. Swearingen, Appellee.

APPEAL FROM CLINTON.

Joint tenants may make a subdivision of time for the exclusive occupancy of the whole of a tract of land.

The certificate of the sheriff, of the sale of land, without producing the judgment, and proving the regularity of the sale, is no evidence of title in the purchaser.

This was an action of trespass quare clausum fregit, commenced in the Clinton circuit court by Swearingen against Curtis. The locus in quo is described in the declaration, as the south-east quarter of section 11, in township 2 north, of range 4, west of the 3d principal meridian, and ten acres from the north-west corner of the south-west quarter of section 12 adjoining, on which was a grist and saw-mill, &c. The defendant pleaded not guilty, with leave to give title in evidence. The jury found a verdict for the plaintiff, and 75 dollars in damages. The facts in the case, as proved, were as follows: The plaintiff, to prove his title to the premises, read in evidence a patent from the U. S., dated in 1823, granting them to Slade, Herbert’s heirs, and the plaintiff. The plaintiff claimed one-third, and John Smith two-thirds, by lease from Slade—that by agreement with plaintiff and Smith, they had some time before the trespass complained of, occupied the mills alternately; Smith for two weeks, and the plaintiff for one week, and so on regularly; that on plaintiff’s week, his occupation of the mill was always exclusive, and that during Smith’s two weeks, his occupation was exclusive—that it was their practice to commence their week or two weeks’ occupation on Monday morning, about the usual time of going to work—that one of them always used and occupied the mill, if he chose, through Sunday, and up to Monday morning, until the other would come to commence his week; that the two#weeks preceding the 26th of December, 1825, (which day was Monday,) were Smith’s two weeks for occupying the mill. Plaintiff’s son, on the preceding Sunday night, fastened the gate of the mill-race, with a chain and lock—that it had not been usual to lock the *208gate—that the gate was not on the land mentioned in the patent, though a part and parcel -of the mill-tract, and that they occupied it, alternately, as they did the mill. The defendant proved that some time in the week preceding the 26th of December, 1825, he applied to Smith to get possession of the mill and premises, and that Smith, for a stipulated price, let defendant have all • the possession that he, Smith, had in the same, and that he, defendant, entered upon and occupied and used the same from some time about the middle of the week next preceding said 26th of December, and continued to occupy it during that week—that defendant, a little before day on the morning of said 26th, (Monday,) and which would have been plaintiff’s week, went to the mill, and forced off the chain from the gate then in the water, opened the gate, and continued to occupy the mill with Smith, alternately, from that day to the commencement of the suit. The defendant offered in evidence, to prove a right of entry, a certificate from the sheriff of Clinton county, of the purchase of the premises under a sheriff’s sale, and also three several executions against the plaintiff, and proposed to prove by the sheriff’s return on them, and other evidence, that the sheriff had levied the executions on the plaintiff’s interest in the premises, and had sold them to defendant as mentioned in his certificate, to which evidence the plaintiff objected, and the court sustained the objection. It was further stated by a witness, that when plaintiff’s son put the chain and lock on the race-gate, on Sunday night, he was with him, that they did not go into the mill, but went past it, and that he did not see any person in it. Another witness said that no person was in the mill on Sunday, as the water was scarce ; and another witness said, he went past the mill on said Sunday, and believed that defendant or some of his family was in it, but was not certain—he knew defendant occupied it through Saturday, the 24th. This was all the evidence.

The defendant moved the court to instruct the jury, that if they believed, from the evidence, that plaintiff’s possession was not continuous, he could not recover in this action but for the first entry, and first week’s occupation of the premises by defendant—that if they believed, from the evidence, that defendant entered under Smith by contract, the week preceding the said 26th December, and occupied for that week as Smith had a right to do, that his entry was lawful, and that retaining possession by defendant on Monday, the 26th, and thenceforward, did not make him a trespasser, and that they should find for the defendant.

*209The court refused to give the instructions asked for, but instructed the jury that the plaintiff had a right to the possession of the premises on Monday, the 26th, in pursuance of their agreement, and that if defendant held the possession against the plaintiff on that day, he was a trespasser. The defendant excepted to this opinion, and moved for a new trial, which the court overruled.

Blackwell, for appellant.

Mills, for appellee.

Opinion of the Court by

Justice Smith.

This was an action of trespass, for breaking and entering the close of the plaintiff. This case presents for consideration this question, whether persons may make a subdivision of time for the exclusive occupancy of the whole of a tract of real estate ?

Joint tenants may make subdivisions of premises, and of the occupancy thereof, and may maintain several actions. According to this decision, it is thought that the subdivision of time'for the occupancy is analogous, and may be legally done. The premises in question were alternately occupied by Swearingen, and another person of the name of Smith, a joint owner of two-thirds of the premises with Swearingen.

Smith occupied for two weeks, and Swearingen for one, in succession. From the evidence, it appears that Swearingen came into his possession by the locking of the gate of the mill, on the last evening of Smith’s two weeks, by his agent. The holding of possession, therefore, under color of the previous entry under Smith, whose right expired with the two weeks, was tortious, and the court below properly instructed the jury that Curtis was a trespasser.

The offer to give in evidence the three executions against Swearingen, was, we think, properly rejected; there was no offer to show a judgment, and the regularity of the sale, and it is not pretended that any deed was ever executed by the sheriff to Curtis, as the purchaser of the premises in question. I am of opinion the judgment should be affirmed. (a) , (1)

Judgment affirmed.

(a)

A sheriffs deed can not be given in evidence without producing the judgment and execution under which the sale was made; without them, the sheriff has no authority to sell. Den v. Wright et al., 1 Peters’ C. C. Rep., 64.

(1)

The general doctrine in regard to the sale of land by a sheriff is, that his deed is inadmissible in evidence, unless the judgment and execution under which the sale was made, be produced, to show the sheriffs authority to sell. Bybee v. Ashby, 2 Gilm., 163. Davis v. McVickers, 11 Ill., 329.

*210The act of February, 1841, (Purple’s Statutes, 646, sec. 21; Scates’ Comp., 609,) provides that the sheriff's deed shall be evidence that the provisions of law in relation to sales of land on execution were complied with, until the contrary be shown; but this does not dispense with the necessity for the production of the judgment and execution, which are still necessary before the deed can be read in evidence. Bylee v Ashby, supra.

When land is sold on execution, and a sheriff's deed thereon is executed, but no judgment is shown to support such execution, no title passes to the purchaser. In this case the execution described the judgment as having been rendered in 1844. The judgment offered was rendered in 1843. The variance was held to be fatal. Pickett v. Hartsock, 15 Ill., 283.

A sheriff’s deed must convey the land levied on and sold; and if the levy is so uncertain in its description of the premises levied upon, that it can not be understood what they are, the sale will be void. The deed can not remedy it. Fitch et al. v. Pinckard et al., 4 Scam., 84.

There should be entire uniformity in the return to the execution, the certificate of sale, and the deed, where real estate is sold by the sheriff, or the deed will be invalid. Dickerman et al. v. Burgess et al., 20 Ill., 266.

A certificate of sale by a sheriff to another person than the purchaser, as shown by his return to the execution, is a void act. Id.