#### DEN ON DEMISE OF JOSEPH BROOKS & AL. vs. BENJAMIN RATCLIFF.

Where the land of a debtor has been sold by execution and an action u brought against him to recover possession, he has no right to object that the sheriff h83 not made the deed to the purchasers at the execution sale, since the sheriff may convey to an assignee, whether he be an assignee by law or by contract.

In cases of verdicts, subject to the opinion of the Court, all the points, on which either party means to insist, ought to be reserved, for all points not reserved are taken to be given up. If one of the parties cannot have in» serted a question, on which the presiding Judge inclines against him, he ought not to consent to such a verdict, but peremptorily claim that an opinion shall then be given to the jury, as he has a right to do.

Where an action was brought in the name of .James Brooks, William E. Colton and William E Churchill, partners trading under the name and firm of “ Brooks, Colton and company,'’ and the judgment was in the name of Brooks, Colton $• Co., Held, that this was a variance, for which the judgment might have been reversed at common law, but the error-was cured by our Statute of Amendments, Rev. Stat. ch. 3, sec. 5.

A purchaser -of land at an execution sale gets a good title, although thp sale wag made on a Tuesday or Wednesday of the week, on the Monday of which the writ was returnable, but was not returned.

' A deed, after reciting a sale of land by execution, proceeds thus: “In.consideration, i-e, the said P. R. sheriff, #e., doth hereby bargain, sell, alien, enfeoff, convey and confirm with the said James T. Brooks, #c.> their heirs and assigns, <j-e„ to have and hold the same to the said, their heirs and assigns.” Held, that the use of the word with does not affeefc the sense or operation of the instrument; as, upon the context, it is evident, between or with whom the contract is, and by and to whom the estate is conveyed.

The cases of Testerman v. Poe, 2 Dev. & Bat. 103, Wall v, Jarrott, 3 Ire. 42, Barnard v. Etheridge, 4 Dev. 295, Gibson v. Partee, 2 Dev. Bat; 530, Pope v. Bradley, 3- Hawks. 16, Lanier v. Stowe, 1 Hawks. 229, and Mordecai v. Speight, 3 Dev. 428, cited and approved.

Appeal from the Superior Court of Law of Buncombe County, at the Special Term in February 1850, his Honor Judge Caldwsll presiding.

*322The lessors of the plaintiff set up a title, by virtue of a sheriff’s sale under a judgment and execution against the defendant, Ratcliff. By the transcript of the record it appeared, that the action was debt by James S. Brooks, William E. Colton, and William E. Churchill, partners trading under the name and firm of “Brooks, Colton and Company,” upon a bond given by the defendant to “Brooks, Colton &Co.” and that, a fieri facias was issued thereon, running also in the name of “Brooks, Colton &■ Co.,” by virtue of which the sale was made, under which the plaintiff claims. For that variance or defect, the counsel for the defendant insisted, be was entitled to a verdict; but the Court held otherwise. The plaintiff then gave in evidence the return of the sheriff on the execution, that on the 4th of October, 1843, he sold the premises to the plaintiffs in the said execution, and also a deed lrom the sheriff, dated September ISth, 1346, to James S. Brooks, William E. Churchill and William M. Colton and Eli Colton, in which is recited the levy of the execution and the sale of the premises to James S. Brooks^ William E. Colton and William E. Churchill, copartners under the firm of Brooks, Colton & Co, and that, after-wards, the said William E. Colton died and left surviving him the said William M. Colton and Eli Colton, who were the only children and heirs at law of the said William E. Colton, deceased ; and then the premises are conveyed therein to the said four persons, James S. Brooks, William E. Churchill, and William M. Colton and Eli Colton, in fee. After those recitals and stating the.price bid and the payment thereof, the deed proceeds thus-: “In consid. eration, &c., the said P. R. Sheriff', &c. doth hereby bargain and sell, alien, enfeoff, convey and confirm with the said James S. Brooks, &c. their heirs and assigns all, &c. to have and to hoi A the same to the said, &c., their heirs and assigns.” By reason of an alleged defect in the deed in using the word “with” instead of “to” in the'conveying *323part, the counsel for the defendant insisted, that it did not pass the title to the lessors of the plaintiff. But the Court •held to the contrary. The defendant then called, as a witness, the sheriff, who made the sale ; and he deposed that he did not sell on the first Monday of October 1843* (which was the return day of the execution,) but that, at the request of the defendant, he postponed the sale from Monday until Tuesday and again from Tuesday to Wednesday of that week, and that on this last day the sale ■was made. The counsel for the defendant, thereupon insisted, that if that testimony was true, the said sale was void ; but the Court held, that it was, nevertheless, valid* The counsel for the defendant, thereupon, excepted to the opinions of the Court upon those several points. The counsel for the defendant then insisted, that, for as much as there was no evidence, besides the recitals in the she* riff’s deed, that William E. Colton had died of that William M. Colton and Eli Colton were his heirs, the plaintiff could not recover.

The Court gave no opinion thereon to the jury, but, by the request of the counsel in the cause, the point was reserved ; and thereupon a verdict was taken for the plain* tiff, subject to be set aside and a non-suit entered, if the Court should be of opinion on that point for the defendant! otherwise, judgment to be entered on the verdict. After-wards, the Court set the verdict aside and ordered a non-suit, and the plaintiff appealed, and then the defendant appealed also.

N. W. Woodfin and J. G. Bynum, for the plaintiff.

J. Baxter and Gaither, for the defendant.

Ruffin, C. J..

Upon the point reserved, the case of 'Teslerman v. Poe, 2 Dev. & Bat. IOS, and those referred to in it, are direct authorities against the judgment. The shiriff may rightfully convey to the assignee of the p'tlf-*324chaser, and it is not material, whether he be assignee by ' contract or by law. But, in truth, that is a matter with which the debtor in the execution has no concern ; it being altogether between the sheriff, the bidder and the alleged assignee. In this case, indeed,the acquiescence by the sheriff and two of the partnership, which purchased the land, jointly with two persons purporting to claim as the children and heirs of the other partner, furnishes a presumption of the existence of those facts; since, otherwise, it would be against the interest of the supposed survivors thus to take the deed. But our opinion does not go on that ground aloné, nor, even, chiefly. It proceeds on the broader one, that the objection is not one, which the defendant has a right,, to raise. It was, therefore, erroneous to set aside the verdict, and there ought to have been judgment on it for the plaintiff, according to the agreement of the counsel. Consequently, that judgment must now be given here.

It will be thus perceived, that the defendant has pre-eluded himself from taking advantage of any error, which might have been committed in ruling the other points against him. For, although, a plaintiff may, doubtless, appeal from a judgment for him, if it be, for example, for less’than he was entitled to, yet we do not see, how a defendant can bring a writ of error or appeal upon a judgment in his favor, since it is of no consequence to him upon what ground he is discharged. In cases, therefore, of verdicts, subject to the opinion of the Court, all the points on which the party means to insist, ought to be reserved. If one of the parties cannot have that done, in respect to a question, on which the presiding Judge inclines against him, he ought not to consent to such a verdict, but peremptorily claim, that an opinion shall then be given to the jury, as he has a right to do. By consenting that the judgment shall depend on this or that particular question, all others are necessarily taken to be *325given up. These observations are made to prevent aa oversight of the kind in future; for it so happens, that in the present case, the opinion of this Court concursan each point with that given against‘the defendant in the Superior Court, and. therefore, he suffers no prejudice from the manner in which the case was brought up.

There is no variance between the judgment and execution ; both being in the name of the firm of “ Brooks, Colton & Co.” There is, no doubt, such error in the judgment would 'have been cause for reversing it at common law. But the statute of amendment cures it by the provision, that no judgment shall be reversed for any mistake in the name of any party or person, when, the correct name has been once rightly alleged in any of the pleadings or procéedings. Rev. Stat. ch. 3, sec. 35.— Wall Holton v. Jarrott, 3 Ire. 42. If the judgment could not be reversed, the execution which conforms to it, must, of course, be supported. It is said, indeed,, that there was no judgment rendered in the action of debt.— But we must hold to the contrary. First, that objection was not taken on the trial: If it had been.it would have been untenable, as we have had many cases, in which it was held, that although the judgment be not formally entered, yet, that, upon a verdict, which, connected with the pleadings, authorized a judgement, one shall be intended and the minutes be taken for the judgment, if a formal entry could be made up from them. Barnard v. Etheridge, 4 Dev. 295. Gibson v. Partee, 2 Dev. & Bat. 530. The Courts, being aware of the indulgence; which counsel and attornies extend to each other upon these parts of their duty, ai’e obliged to admit such intendments, in support of rights derived under judicial proceedings.

The act, which requires sales to be made at the Court House on the same Monday of each month, on which the court of the county sits, expressly authorises the sheriff to postpone the sale from day to day, for any of the rea*326sons mentioned in- the act; and it has been held, that in iespect to the postponement of the sale, the act is directory, and, therefore, that the purchaser is not bound to see that the officer complied with his duty in that respect, any more than in duly advertising, or selling all the personalty before offering the land. Henee a purchaser on Tuesday or Wednesday gets a good title; and it is settled, that he does so, although his purchase be on those days of the week, on the Monday of which the writ was returnable, but was not retained. Pope v. Bradley, 3 Hawks. 16. Lanier v. Stone, 1st Hawks. 229, Mordecai v. Speight, 3 Pev. 428.

Upon the remaining point, as to the effect of the use of the word, “with,” in the conveying clause of the deed, the Court is of opinion, that it is an inaccuracy, which does not affect the sense or operation of the instrument, as upon the context, it is evident, between whom or with whom the^eontract is, and by and to whom the estate is conveyed. On the whole case, therefore, the judgment must be reversed ; and, the Court, proceeding to give such judgment as the Superior Court ought to have given, the verdict must be reinstated and judgment rendered thereon for the plaintiff, in conformity to the agreement between the parties.

Pee Cukiam. Judgment reversed and judgment for the plaintiff.