#### Den on demise of Hattan & Wife & others v. Arthur Dew.

7 From j Edgecombe.

An execution issued from February term 1807, on a judgment recovered in the County Court, and was returnable to May term following. The execution was continued, and by virtue of the one which issued from Slay term 1808, the same being on the 9th May, and made returnable to August term following, the land in dispute was levied on and sold, and the lessor of the Plaintiff' became the purchaser. Judgment was recovered against the same Defendant before a Justice of the Peace, and the execution which issued thereon was levied by a Constable prior to the levy made of the first execution by the Sheriff. The order of sale was; made by the County Court at August term 1809. A vinditioni exponas was issued, by virtue of which the land was sold, and the Defendant became the purchaser. The deed to the lessor of the Plaintiff recited that the sale, under which he claimed, was made by virtue of the execution winch issued from February term of the County Court 1807 j whereas in truth, it was not made until 27th July 1808. The Plaintiff is entitled to recover the lands : for,

1. The lien created by the teste of the execution, which issued on the: 9th May 1808, was not destroyed by the levy afterwards made by the constable j particularly as there was no sale under that levy until a levy and sale under the first execution.

2. The erroneous recital in the deed to the lessor of the Plaintiff, does not affect the operation of the deed. The recital is not an essential part of the deed ; its use is only to explain more fully the intention of the parties, or to serve as a reference in the future investigation of the title. It affirms no fact, and can never amount to an estoppel.

The execution gave the Sheriff authority to sell, and although his power be incorrectly set forth in the deed, yet the deed is good.

And it would seem that the Sheriff may be admitted a witness to prove the mistake, that he sold under the execution of 1808, and not under that of February 1807.

This case was sent up to this Court upon the following special verdicts to-wit:

“ A judgment was obtained against Hattan, in Nash County Court, at “ February Sessions, 1807. Execution issued thereon, and was returned “ to May, 1807, without any levy having been made. A second issued, “ tested May, and returnable to August term, 1807, on which was a re- “ turn, “ Rec’d Clerk’s and Sheriff’s fees” — And the execution directed “ to the Sheriff of Edgecombe, tested the second Monday of May, 1808, *261and returnable on the second Monday in August following, was issued, “ and returned with the following indorsement, “ Rcc’d 40s. in part of « this judgment, by sale of land; no more property to be found in my ££ County” — The Sheriff levied the last mentioned execution on the 8th “ or 9th of June, 1808, and sold by virtue of it on the 27th July following, “ the land in question, when Coleman, one of the lessors of the Plaintiff, “ became the purchaser, and the Sheriff executed to him a deed. But ££ the deed recites that the sale was made by virtue of an execution issued S£ from Nash County Court, tested the second Monday of February, 1807. “ Hattan acquired his interest in the land by marrying his wife, and his “ marriage took place between the time of the judgment rendered, and “ the issuing of the execution on tire second Monday of May, 1808. This ££ is the title set up by the lessors of the Plaintiff.

' “ As to the title set up by the Defendant, the Jury find, that on “ the 13th day of May, 1808, a judgment was obtained, and execution “ issued thereon, against die goods and chattels, lands and tenements, of ££ Hattan. A Constable, to whom it was directed, levied it eight or ten “ days before the sitting of Edgecombe County Court, and returned it to ££ that Court. It was entered on the appearance docket, at August term, “ 1808, and continued until August term, 1809, when an order of sale “ was made, and an execution tested the fourth Monday of August, 1809, ££ and returnable to November term following, was issued, under which ££ the land was sold, and the Defendant became the purchaser. The De- “ fendant is in possession; and if, upon this finding, the law be in favor of “ the lessors of the Plaintiff, the Jury find the Defendant guilty, and “ assess his damages to six-pence and costs: If the law be for the Defen- ££ dant, they find him not guilty.”

Upon the trial, the Sheriff was admitted as a witness, to prove that he levied the execution which issued on the second Monday of May, 1808, on the 8th or 9th of June following, and sold the land in question, by virtue of that execution, on the 27th July. And upon his evidence, the Jury found these facts, as stated in the special verdict.

Upon this case, the Court were divided in opinion. Chief-Justice Taylor and Judge Henderson being of opinion, that judgment should be rendered for the Plaintiff: and Judge Hall being of opinion, that judgment should be rendered for the Defendant.

Taylor, Chief-Justice.

The first execution against Hattan issued from February term 1807, of Nash County Court, where the judgment was rendered: but the levy *262was made on the third execution, which bore teste the second Monday in May, 1808, and the Jury have found, upon the evidence of the Sheriff, that the levy was actually made on the 8th or 9th of June following. The Sheriff’s deed, however, recites that the sale was made by virtue of the first execution; and as this recital is erroneous, the question is, Whether the deed shall operate to convey the land to the purchaser, Coleman ? If a recital were an essential part of a deed, or if the land were conveyed according to the recital thus erroneously stating the levy, there would be some ground for the objection to rest upon. But the use of it is only to explain more fully the intention of the parties, or to serve as a reference in the future investigation of the title. It affirms no fact, and never amounts to an estoppel.*

If one recite a former lease to have been made on such a day to J S, and then make a new lease, to begin after the end of the former lease, and mistake the date of the old lease, in this case, the deed is good, notwithstanding the mistake.† If, indeed, the property be described in the' effective words of the conveyance, only according to the false description given of it in the recital, it will pass by the deed, as appears by the following case. If I grant to J S, all the lands in Bale which I purchased from J D, or which came to me by descent from J D ,* or, I give all my goods to J S, which I have as executor of J D, and, in truth, I have no such lands or goods, but I had them by some other means, or of some other person, in these cases, and by this mistake, the deed is void. But if I grant to J S, all my lands in Bale by name, as White acre, which I purchased of J D, and in truth, I purchased them of another, in this case, this mistake will not hurt the deed.‡ As, then, it appears in this case, that the Sheriff was duly authorised to make the sale, although his power is incorrectly set forth in the deed, a majority of the Court are of *263opinion, the law arising on the special verdict is in favor of the PlaintiiF.

Hall, Judge

The lien created by the teste of the writ of execution, which issued on the 9th May, 1808, cannot be destroyed by the levy afterwards made by the Constable, particularly as there was no sale under that levy until a levy and sale under the execution which first issued. In England, it is said, that if the Sheriff execute the writ last delivered to him, before the first, he shall be answerable himself for the debt due to the Plaintiff in the first execution. ' And of this he has no right to complain ; because, as all executions are delivered to him, he may know which to execute first: But in this State it is otherwise. The Sheriff and Constables of a County, have each a right, in many cases, to levy and sell the same property $ and it would not do to say, that one officer, executing a younger execution before an elder, in the hands of another officer, whether he knew of it or not, should be liable to the Plaintiff in the first. 'Whether purchasers under the younger execution would be protected, or whether the lien created from the teste of the first would subject property so sold, it is not necessary to decide; because the property was here first sold under the execution that first issued. It is said, that the reason of altering the law in England by the statute of frauds, in making the lien commence from the delivery, and not from the teste of the writ, was on account of purchasers claiming property bonajide purchased under younger executions, when there were older ones, the lien whereof reached back to their teste.* If this were the case, and the law has not been altered with us, it would seem" that such purchasers would be obliged to yield to such lien, particularly when the two executions are in the hands of different officers, as in this case, and no remedy can be had against them. As to the first part of the case, my opinion is in favor of the Plaintiff.

*264As to the other question, my opinion differs from that of my brethren, and I will briefly assign the reasons which support my opinion. It is enacted by the 27. Hen. 8, ch. 16, sec. 1, “ that no lands or hereditaments shall 6e pass, whereby any estate of inheritance or freehold shall “ be made, by reason of any bargain and sale, except the “ bargain and sale be made by writing and enrolled.5’ It is also enacted by our act of 1715, ch. 38, sec. 5, that no conveyance of lands shall be good and available in law, unless the same be ■ acknowledged or proved, and registered 5 and that all deeds so done and executed shall be valid and pass estates in lands, &c. Here it appears that lands cannot pass from one person to another without writing | and it is expected that every one can shew a written title to land of which he is the proprietor. It is true, that the Legislature have taken away the remedy of claimants, where they have not asserted their claims within the time prescribed by law, and vested the title in those who during that time have been in quiet possession. But these acts do not interfere with the requisite, that titles to land must be in writing ; and where there is no possession relied upon, there must be no chasm in those titles there must be no link wanting. — Now the Plaintiff does not depend upon possession for a title. Does he shew a written one ? He shews a deed from the Sheriff, in which the Sheriff sets forth the authority he had for executing it, to-wit, an execution bearing date the second Monday of February, 1807. Were that execution shewn, and the judgment on which it issued, the Plaintiff’s title would rest as far as it could upon written evidence. But it is admitted that the land was not sold under that execution j yet parol testimony is admitted to shew that it was sold under another execution. This is not only connecting the deed and execution by parol testimony, butexpressly contradicting the very deed under which the Plaintiff claims, and to which he is a party. If this be allowable, who can find out in whom title to land is, by *265searching records ? It is true it appears, from the testimony adduced, that the land was sold under another execution issuing from the same judgment. But if that can be shewn, wliy not go a step further, and shew that it was sold under an execution issuing from another judgment between different parties ? Would not this give rise to much confusion and inconvenience? Were this allowable, titles to land would in a great measure depend upon parol testimony. Is there any necessity for this ? Would it not be an easy thing truly to recite the execution under which the land was sold ? I doubt not, it was done in the present instance through mistake $ this may be the case again j but that is no reason for adopting a rule that would give rise to so much uncertainty and inconvenience.

*

Coke Lit. 352, b. Finch. Law, 33,

†

Dyer 93,160,

‡

Dyer 50, 87,376.

*

1 Term Kep. 7$ 1.