#### Doe on demise of Thompson v. Hodges.

i From Cumberland.

A sale by a Sheriff, era masse, of tracts of land adjoining each other, will be supported.

This was an action of ejectment, tried in Cumberland Superior Court, before Norwood, Judge.

The facts, as they appeared below, were the following : The lessor of the Plaintiff, purchased the lands in dispute, of James Atkins and John Thames, and made title as follows: In December, 1809, a judgment was obtained by Dew and Barnes, against Philemon Hodges, fpr £ 829 3 9, and an execution issued thereon, on which a return was made by the Sheriff, that he had levied on several tracts of land, and among others “the land where P. Hodges lives, with about 2000 acres of land.” A venditioni exponas issued, commanding a sale of the land levied on, and the Sheriff returned thereon, a sale of the several tracts; and, as to the disputed premises, the return was in these words, “ 1920 acres of the land, belonging to the home plantation, bid off by James Atkins, at six hundred and fifty pounds, ten shillings ; 80 acres remainder of said lands, bid off by James Atkius, at two pounds, ten shillings.” The Sheriff, on the 30th of April, 1812, executed a deed to Thames and Atkins, for the land, reciting the execution, and stating that he had levied “ on sundry tracts or parcels of land, situate, lying and being in the county of Cumberland, on the lower Little River, including the houses, lands and improvements, whereon said Hodges then lived, and •now lives, it being the whole of the lands said Hodges owned, in that body, in Cumberland county, and all th$ different tracts joining each other, containing, by estimation, two thousand two hundred acres, more or less.” *52The consideration money of the deed was g 1301, equal 10, and the sale took place in 1810. Thames and Atkins conveyed to the lessor of the Plaintiff.

The 1920 acres were set up for sale by the Sheriff, en masse, and included sundry tracts adjoining each other. The house in which the Defendant resided, at the time of the sale, was two miles distant from that in which he lived, at the time the deed was executed, and they were on different tracts of the 1920 acres. Various objections were made below, to Plaintiff’s title,; among others the two following: That the Sheriff had levied oil and, sold', to Thames and Atkins, 2000 acres, more or less, and had conveyed 2200 acres, more or less; and that the sale of the 1920 acres, en masse, was, in law, a fraud, and vitiated the whole sale. On the last mentioned point, the Court instructed the Jury, that a Sheriff is bound to use such means, in the sale of property, under execution, as any ordinary and prudent man would do in the sale of his own property, in order to make it bring the best possible price; and it was for the Jury to say, as on this case, whether, under the circumstances of it, it was apparent that the Sheriff had sold the land improperly, in making the sale en masse, and thereby sacrificed the property; if so, no title in the property passed to the Plaintiff; if otherwise, the sale was valid; and that their finding, upon this part of the case, should be regulated accordingly. A verdict was returned for the lessor of the Plaintiff; and the case stood before this Court on a rule to shew cause wherefore a new trial should not be granted.

Gaston in support of the rule.

1. The . deed, under which Plaintiff claims, conveys more land than was purchased, and conveys ail for §1301; whereas, at the Sheriff’s sale, he purchased at that price,, only 1920 acres: the deed is void, and passed no title for any part. The Sheriff’s return is here evidence of the *53fact of sale and purchase. — (11 East. 296. 2 Hen. and Mun. 112.)

The Sheriff has no authority to give a deed, except tor what he sold; his deed is to certify and effectuate that transaction: and when a public officer transcends his auihority, the whole act is void. — Jones v. Gibson. («IV*. C. Term, It. 41.)

2. The sale was of sundry tracts, en masse; the Judge should not have left the validity of such sale to depend on the enquiry, whether it was actually injurious? Tt is a rule of law, that such a sale is void, (1 Binney, 71,) laid down on the broad ground, that as regards the conduct of officers, the rules of law are general, in order to take away the power of doing an injury. Thus, on this general priu-.cipie, where property is not present at a Sheriff’s sale, or not sold at auction, no title will pass ; (2 Hay. 65, 336, —Conf. Rep. 550,) purchases, by trustees, at their own sales, are void.' — Éijden v. Jones. (1 Hawks, 407.) In the case of negroes sold en masse, this Court declared tiie sale void, without enquiring whether it occasioned a sacrifice of property. — McLeod v. Pearce. (2 Hawks, 111.) Practices generally injurious, generally liable to abuse, are forbidden, and actual fraud, is not, in every instance, required to be shewn. — Davoust v. Fanning. (2 Johns. Ch. Rep. 260.)

Policy requires that such sales should not be permitted: men in moderate circumstances cannot buy; those acquainted with tl\e localities of the tracts have an advantage; such sales, generally, produce a sacrifice, and there is more reason for applying tiie rule to lands, than to chattels, for chattels must be in view at the time of sale, lands need not be.

3. The deed conveys nothing, because it does not describe the land with requisite certainty. — (13 Johns. R. 551, 2. — 1 Johns. Ca. 284__14 Johns. R. 352.)

Ruffin, contra.

The second and third objections, taken for .Defendant, are isubstantially the same. The descrip-*54(ion in the deed is sufficiently certain;' it cannot be expected to be by metes and bounds, for the Sheriff has no means of ascertaining the boundaries; he cannot sell than as he has here done, without entry and survey. The rule must here apply, id cerium est quod cerium reddi potest. < Two reasons are assigned for the rule insisted on, under the second objection; 1st, sales of this kind tend to fraud and public injury; and therefore, 2d, it shall be deemed in law, a fraud. Matter of fraud, has been repeatedly held by this Court to be matter of fact, for a Jury. — Trotter v. Howard. (1 Hawks, 320.) Lanier v. 8tone. (Ibid. 329.) To lay down any positive rule on the subject, is impossible. The lands here, were in one body; the Sheriff could not do otherwise than he has done; he had no access to the title deeds ; they were in Defendant’s possession. If it be Defendant’s interest to have his land sold in separate parcels, he should survey it, or give the Sheriff his deeds.

As to sales of chattels, they are, in their nature, distinct; lands are not so; but, under peculiar circumstances, it is believed, that a sale, even of chattels, en masse, would be supported.

As to the first objection, it is not sustained by the facts ; the return is, “the land where P. Hodges lives, with about 2000 acres,” and the deed and record shew the land to be the same. The case read from 13 Johns. shews, that when certain tracts are particularly described, and others not, those so described passed by the deed, though the rest did not: now, in our deed, there are the two tracts particularly described,

Gaston, in reply,

said, that as the grantor was a public officer, the deed should not be construed most strictly against him. Matters of fraud are not all matters of fact; as between parties, acting for themselves, intent is important, and it should be left to a Jury to ascertain such intent; hut as regards public officers, they do *55roí own the property; they are clothed with a naked authority, and their conduct may he fraudulent, in law, without resorting to a Jury to ascertain intent.

Per Curiam.

This case is much stronger for the purchaser than the castTof Wilson v. Twitly, deckled at this term, and to w hich We refer for the principles governing this case. The rule for a new trial must he discharged.