#### Den on demise of John Thompson v. Philemon Hodges.

Cumberland.

In ejectment for lands purchased at a Sheriff’s sale under execution, the Plaintiff need shew as against the Defendant in execution only, 1st. a judgment; 2d. an execution, giving to the Sheriff authority to sell; and 3d. the Sheriff’s deed.

If, therefore, in the Sheriff’s deed, there he a mistake in reciting the judgment, or the execution, or the return indorsed on the execution, it is immaterial, if it appear that there was a judgment, and an execution issued thereon, giving to the Sheriff authority to sell.

The lessor of the Plaintiff claimed the land in question under a deed made to him by the Sheriff of Cumberland county. He gave in evidence a judgment obtained at December term, 1809, of Cumberland County Court, by Dew and Barnes against the Defendant, and an execution tested of March term, 1810, on which was indorsed the following return, viz. “ Levied on 640 acres of land, the “ upper side of Little Rives', the land where P. Hodges “ lives, about 2000 aci’cs, and not sold, by direction of the “ Plaintiffs.” He then gave in evidence a writ of vendi-tioni exponas, issued in the same case, commanding the Sheriff to sell the lands levied on. This writ was tested of June Term, 1810, and the Sheriff had returned on it, that after advertising the lands, he had sold them at the court-house on the Jirst day of September, when J ames Atkins became the purchaser. The Sheriff’s deed was dated the 30th day of April, 1810, and was made to James Atkins and John Thames. It recited a judgment in favor of Dew and Barnes, against Philemon Hodges and his secu-Hties, and an execution issued in pursuance of said judgment, authorising said sale. It then recited that James Atkins and John Thames became the purchasers at the sale made by the Sheriff, at a price different from that set forth in the Sheriff’s return on the writ of venditioni ex-ponas.

*547The Court was of opinion, that the Plaintiff could not recover, because he had not produced in evidence the judgment and execution recited in the Sheriff’s deed, but had produced a judgment and execution against Philemon Hodges only; and because the Sheriff’s deed was dated on the 30th April, 1810, whereas it appeared by the Sheriff’s return, that the lands were not sold till the first day of September following; and lastly, because the return on the writ of ■venditioni exponas shewed that James Atkins became the purchaser at the sale, and not he and John Thames, and that the price at which Atkins purchased was different from that which the deed recited was paid by him and Thames. The Plaintiff submitted to a non suit, declaring that he was ready to prove that the land described in the declaration was included in the levy, sale, and Sheriff’s deed, and had been conveyed by Atkins and Thames to his lessor. A rule for a new trial was obtained •, which being discharged, the Plaintiff appealed : And,

By the Court.

This case comes within the principles which govern the case of Den on demise of Benjamin Smith against Hanson Kelly, decided at this term. The nonsuit must he set aside and a new trial granted.