#### DEN ON DEMISE OF REDIN RAIFORD vs NEWETT PEDEN.

Under all execution to sell the lands descended from A. to B., the sheriffhas no authority to sell lands devised by A. to B. and such sale will be void. Where A. having several tracts of land, devises one tract in fee to B. who is one of his heirs, and another tract in fee to C. another heir, each takes by devise and not by descent.

Appeal from the Superior Court of Law of Johnston County, at the Fall Term 1849, his Honor Judge Battle presiding.

This was an action of ejectment for a tract of land of which it was admitted that the defendant was in possession. The plaiqtiff’s lessor proved, that Ralph Massey died in the year 1836, having been twenty-one years in possession of the lauds, now in controversy, and that he *467left surviving him his heirs at law two daughters, Celia and Olive, of whom the former married William Peden. He also left a last will, which was after his death admitted to probate. The lessor then proved a writ of scire facias against the heirs and devisees of the said Ralph Massey, dec’d, a judgment thereon, a writ of execution to the sheriff, his levy and sale made thereupon and his deed to the lessor for the lands, now sued for, copies of all which are sent up as part of this case. To show that the plaintiff claimed under Celia, one of the heirs at law and devisees of Ralph Massey, the plaintiff’s lessor then proved a deed from William Peden aud wife to the defendant.

It did not appear, either way, whether Ralph Massey had any other lands than those mentioned in his will or not.

The defendant contended, that the said deed was not in fact executed, w'ithin two years after the death of the said Ralph Massey ; and that the writ of execution, under which the plaintiff’s lessor purchased, did not authorise the sale of the land now in controversy, inasmuch as it commanded the sheriff to sell the lands of Ralph Massey, ‘•descended” to his heirs, whereas the land sold did not descend but was devised to Celia, one of the daughters of the said Ralph Massey and wife of William Peden.

The Court, being of opinion that the writ of execution under which the lands were sold, did not authorise the sale, the plaintiff’s lessor submitted to a non-suit and appealed.

Copy of so much of the will, as is necessary in this case.

“I give and bequeath to my daughter, Mary Futrell, the land and plantation, whereon she now lives, &c.

‘•I give and bequeath to my daughter, Celia, all the land and plantation I lent to my wife,” &c.

*468The judgment and execution were against the lands, ‘‘that descended to William Peden and wife Celia, Raiford Lynch, and Wilkerson Futrell and wife Mary, from Ralph Massey, deceased. The deed of the sheriff corresponded with the execution.

J. II. Bryan and Bushee, for the plaintiff.

TU. H. Haywood and G. W. Haywood, for the defendant.

Pearson, J.

Under an execution, commanding him to sell, “the lands that descended to Will: Peden and wife Celia, Raiford Lynch and Wilkerson Futrell and wife Mary from Ralph Massey dec’d,” the Sheriff sold the land in controversy to the lessor of the plaintiff. Celia, the wife of William Peden, was a daughter and one of the heirs at law of said Massey, who disposed of all of his lands by his will and devised the land in controversy to the said Celia. His Honor was of opinion, that the execution did not authorise the sheriff to sell this land. The plaintiff submitted to a non-suit. The sheriff had no power to sell. An execution authorising him to sell one thing did not give him power to sell another; land devised cannot pass under the description of lands descended. It was insisted, that the late statute, which provides that a want of conformity, between an execution and the judgment upon which it issues, shall not vitiate, cures the defect in this case. The statute has no application, for the defect does not grow out of a variance between the execution and the judgment, but is the result of a want of power in the sheriff. The power to sell is conferred by the execution, and must be preserved : if it be exceeded, the act is a nullity, as to the excess ; here there was power to sell the lands which had descended and the. sheriff executed his authority by selling lands which were devised.

It was also urged, that as Mrs. Peden was one of the heirs of Massey and took an estate in fee simple by the de\ise, she took the same estate, that she would have *469taken by descent, and therefore, is, in law, considered as taking by descent. It is true, she takes the same estate as to the quantity of interest, but she takes a different estate as to the subject matter, and, to make the rule apply, there must be the same estate in the same land. This is fully set forth by the authorities. If there be two co heirs and one tract of land is devised to one, and another tract to the other, they take by devise and not by descent, for under the devise each has an estate in severalty in the respective tracts ; whereas, by descent, each would have had an undivided moiety in the whole. Sheph. Touchstone, 451. Reading v. Raustrom, 2 Ray. 827. Salkeld 423.

Per Curiam.

Judgment for the defendant.