#### Doe on dem. of Wilson v. Allen Twitty, William Twitty and David Twitty.

>From Lincoln.

there are no particular rules of conduct prescribed by positive enactment to Sheriffs, in the sale of lands ; but it is their duty to sell in that way by which most money will probably be raised; a sale en masse, of several tracts of land, held under distinct titles, and not lying contiguous, was supported'; however, where it did not appear that either the Sheriff or purchaser knew the situation of the land. ,

Where a Sheriff levied on land and negroes, and left the negroes in Defendant’s possession, taking a bond for their production on the day of sale, it was held, that the negroes not being forthcoming, the Sheriff might lawfully sell the land.

Ejectment, in which Plaintiff’s lessor claimed under a Sheriff’s deed for the disputed premises.

A judgment having been obtained in Rutherford Superior Court, at the instance of Ann Waters, against the Defendant, Allen Twitty, execution was sued out thereon, and by the present Plaintiff, was placed in the hands of the Sheriff, who made thereon a return that he had “levied on one thousand and fifty acres of land, on Green river, and on both sides of Walnut Creek, including the plantation on which Allen Twitty and William Twitty live, including the whole of their improvements and mills ; and on the 7th of June, levied on sixteen ne-groes, the property of Allen Twitty, and on this day, the'2 8 th of June, the.above land was exposed to sale, when Joseph Wilson, Esquire, became the last and high*45est bidder, for the sum of eight hundred dollars.” The return went on to state, that the sale of the negroes was postponed, and after wards, a part of them (seven) sold for 8 1301.

Allen Twitty and the other Defendants, his sons, were in possession of the lands at the time of the sale, and the bringing of the action; and Allen Twitty had been in possession nearly thirty years, claiming as his, all the lands which were levied on and sold. The present Plaintiff, who was interested in the judgment under which the lands were sold, when he delivered tiie execution to the Sheriff, directed him to levy it on Allen Twitty’s land and negroes, and when the Sheriff went to make the levy, he asked Twitty how' much land he had there, and was answered 1050 acres, and the Sheriff levied accordingly. The Sheriff did not know, nor was it made kuown at the time of the sale, that the land was held under different and distinct deeds ¿ but he did know at the time of the levy, that William Twitty and Allen Twitty lived on different parts of the land, at the distance of a mile from each other. Allen Twitty did not inform the Sheriff at the time of the levy on the negroes, „that they belonged to William; the Sheriff left the ne-groes with Allen Twitty, taking from him a bond to produce them on the day before the day of sale, hut they were not produced on that or the following day. William Twitty at tiie sale attended, and claimed the property as his, forbidding a sale.

The tracts of land were meadow or cleared lands, some lying on the river and some back, and not all contiguous, and in the years 1814 ami 1815, Allen Twitty gave in the lands to the assessor, describing them as distinct tracts and belonging to him.

Three objections were taken below to Plaintiff’s recovery : first, that the mode in which the Sheriff sold the lands (in one lot) was illegal. Secondly, that the Plaintiff’s lessor having been beneficially interested m *46{ho judgment under which the land was sold, was bound any 0i' irregularity in the Sheriff at the sale. Thirdly, that the land was sold before the negroes,

The Defendant produced the several deeds under which the land was held, to shew them to be distinct tracts, and also proved, that if all the negroes levied on had been sold, they would have paid the debt, supposing them to sell as well as those which were sold.

Jtfash, Judge,

who presided, charged the Jury, that in an action of ejectment, brought by a purchaser at Sheriff’s sale, against the Defendant in the execution, it was not-necessary for the Plaintiff to shew that the Defendant had any title, nor was the Defendant at liberty to shew title out of himself; but that ihePJaintiffhad made out his case, when ho shewed a- judgment, execution, .sale and Sheriff’s deed to himself, and possession in the Defendant, at the. time the action was brought. Upon the first objection made, the, Jury was instructed that where a Sheriff levied on lands consisting of different tracts, it was his duty to levy on them as such, and also soli them separately, but that where laud was levied on by an officer, under a description given of it by the owner, a sale of it by the officer under that description, so far as the owner, the Defendant in the execution, was concerned, was not illegal, but lawful; the officer not being apprised before the sale of the fact of their being different tracts, nor requested to sell them separately.

As to the second objection, the Judge charged, that the* Plaintiff having been substantially interested in the execution under which the land was sold, was affected by any irregularity or illegality in conducting the sale; and further, that any combination between a purchaser and an officer, so to conduct a sale as to occasion any injury to the owner of the property, rendered the sales Void; and whether there was any such combination in this case, was left to the Jury as matter of fact.

*47As to the third point raised, the Jury was told, that when, to satisfy an execution, an officer levies upon real and personal property, the law requires him to sell the latter first; but where, under 1bc provisions of the act of Assembly, the Sheriff leave» negroes in the possession of the debtor, taking bond and' security for their forthcoming on the day of sale, and at that time they are not produced, he was not only at liberty" to sell the lands, but might be punished if he did not.

Verdict for the Plaintiff’s lessor; judgment and appeal on the refusal of the Court below to grant a -new t^-ial.

Gaston, for Appellants.

The Plaintiff cannot recover except he shews a title derived through a course of legal proceedings. The title here did not pass) because., 1st, the levy and sale of land was made where there was personal estate sufficient to satisfy the debt. The language and spirit of the act of 1777, ch. 115, s. 29, denounce the course lierp pursued; the objects of the Plaintiff and of the la\v conflict, he has pursued his, and thwarted that of the law, and shall not be aided by the law in his triumph over it. — (6 Term R. 405.)

The delivery of the negroes to the party on bond, and non-compliance with the bond, do not enlarge the powers of the Sheriff, or alter the directions of the law or affect the levy. — (1 Mwn. 269.)

2nd. The mode of selling the lands wms irregular, ar~ bitary and injurious; Plaintiff’s deed.is for one entire tract carved out by the Sheriff from sundry tracts disconnected by title, by situation, by possession. — (1 Bin-■neij, 71. 2 Hawks, 111.)

This irregularity is said to be cured by Twitty having, himself, given this description. The evidence does not establish any such fact, but if it did, the Judge had no right to draw such an inference.

The Plaintiff being party and privy to the proceed*48ings on the execution, is affected by their irregularity.— (8 Johns. 361.)

Muffin, for the Appellee.-

The act of Í777, does not confer power, but is merely directory to the Sheriff of the manner of exercising power already possessed ; and though its directions be not observed, yet the act done by the Sheriff may be valid.

Where a Defendant gives his consent that land may be sold first, it may be so sold, and here Defendant’s conduct is equivalent to such consent.

Where personal property is eloigned by a Defendant, the Sheriff may sell land; and here Defendant, by eloigning his negroes, has consented to the sale of his lands. — Osborn v. Woodson, (i Hay. E. 24.) Lanier v.8tone, (1 Hawks, 329.)

The Sheriff did not cut up Defendant’s lands, hut sold them according to Defendant’s own description, and gave what he believed to be the true boundaries j and Defendant ought not to complain that the Sheriff had not sold all the land he had, or that he had sold the land of other persons to pay his debts.

In the case of Lanier v. Stone, the Court decided that a hare knowledge of the Plaintiff, that there was perso-sonal property, .will not vitiate the sale of lands,, but ho must give improper directions. Here the Plaintiff gave proper directions to the Sheriff, in ordering him to levy on the land and negroes, which was all.

Whether there was any combination to injure the De*. fendant, was left to the Jury below, and they have responded that all was fair and without fraud, and if De« fendant prevail here, it must be by some rule stricti le-gis ; and it is humbly submitted that there is no such rule.

Hall, Judge

It. is much to be regretted, that a more particular rule of conduct has not, by the law, becn 'pre* *49scribed to Sheriffs, in sales of landed property under execution. A difficulty exists in this country, (which the law has not provided for,) from the circumstance that most of the lands are uncultivated, and covered with wood, and on that account their boundaries are more difficult to be ascertained; and it has not been made the duty of Sheriffs to set forth their boundaries in their advertisements, or to make them known, particularly, on the day of sale. They have not been required to ascertain, and set them forth, in-any better way than they aré enabled to do from common report, and from the common channels of information, through which people generally acquire a knowledge of them.

The practice has been, to put up the land for sale, by a general description of it; as the land on which the defendant lives, or his lands lying on such a water course, or, as known by such a name.

It has not been made the Sheriff’s duty to ascertain and make known the title; whether it be held under one or more grants, dr deedsor from whom the defendant purchased it.

I believe it is not usual to sell at once, two unadjoin-ing tracts, nór do I know that it is forbidden in express terms. It is surely the Sheriff’s duty to sell in that way that will likely be most beneficial for both parties. I mean in that way that will produce the most money.

In the present case, the lands were adjacent to each other, but were held under different titles, and did not lie adjoining to each other, but tlieir boundaries were not far apart. It did not appear that this fact was known, either to the Sheriff or to the purchaser. It was woodland that separated them. Twitty, with the exception of his Son’s possesion, was possessed of, and claimed title to, all the lands, and told the Sheriff that he had 1050 acres in that part of the county.

It seems that all the lands, when sold, did not produce as much money as the execution called for $ and if the *50lands 'had been sold in separate lots, one probably, would not have sold for more than both together brought, when sold together.

The question of fraud had been fairly left to the Jury; they have been directed to' find for the Defendant, if there was fraud practised, either by the Sheriff or purchaser. Of course, no enquiry is to be made of that, at this time.

Another circumstance may be here noticed, and that is, why did not the Defendant object to the sale, at the return of the execution; there would have been less difficulty then in setting aside the sale, if it had been made with loss to the Defendant, on account of any misunderstanding, either of title or location. But the purchase money was suffered to be paid, and there has been an acquiescence under the sale, until the bringing of this action.— The Sheriff was not to blame for not selling the personal property first; the negroes were kept back by the Defendant himself; he, therefore, ought not to complain on that account.

Without, therefore, adopting'rules for the government of Sheriff’s; which have not been prescribed and enforced heretofore, and from a view of the whole case, and circumstances attending it, I am oí opinion, that the rule for a new trial, should be discharged.

The rest of the Court concurred.