
    
      Jehu Mouchat vs. Nathan Brown.
    
    The owner of an execution, satisfied in fact, though unsatisfied on its face, induced the sheriff to sell a tract of land under it, and became himself the purchaser. There were two junior executions in the sheriff's office against the defendant, which were under stay, and under which the sheriff did not act in making the levy and sale. Held, that the purchaser acquired no title to the land.
    
      Before Wardlaw, J. at Abbeville, Spring Term, 1846.
    The report of his Honor, the presiding Judge, is as follows :
    “ In this action of trespass to try titles, the plaintiff claimed to be purchaser of the defendant’s land, at sheriff’s sale, under execution against the defendant.
    He produced the deed of sheriff Cobb, dated 6th February, 1843, which recites a levy and sale under fi. fa., Thomas Garrett vs. defendant.
    
    He produced three executions, viz :
    1. Thomas Garrett vs. Nathan Brown, lodged 4th February, 1840.
    2. Penn dp Brannon vs. same, lodged 5th March, 1841.
    3. Brannon dp Mundy vs. same, lodged 15th. January, 1842.
    In the two latter cases, judgments were produced; but the judgment in the first having been rendered in Edge-field, was not produced.
    The defence, as stated, was that the plaintiff had been the assignee of the Garrett execution — had received full payment of it, and then had pressed the defendant’s land to sale, and bought it at a great sacrifice. The other executions being stayed, and the sheriff not acting at all under them. That afterwards, upon rule, an issue between these parties had been tried at Edgefield, by which it had been decreed that the Garrett execution was paid before the sale, and satisfaction was ordered accordingly.
    The defendant produced an exemplification of the proceedings had'at Edgefield between Jehu Mouchat, assignee of Thomas Garrett, and Nathan Brown, from which it appeared that by the verdict it was found that the judgment in the Garrett case was fully paid before the first of January, 1843, and that an order for entry of satisfaction had been made 19th October, 1843,
    William Brown testified that the plaintiff had in summer, 1841, acknowledged the Garrett case had been paid.
    Mr. Perrin, who was attorney in the two cases of Penn & Brannon and Brannon & Mundy, stated that both were cases of confession — that he supposed each execution was marked “ wait orders.” He had three months before sale received from Brannon orders to wait, and had communicated the orders to the sheriff: and on the morning of the sale, when he learnt that Mouchat was pressing for that day, he had instructed the sheriff not to sell under either of these executions, and told him of difficulties likely to arise from Brown’s allegation that the Garrett execution was paid. Proceedings at Edgefield commenced 20th February, 1843, upon statement Brown had made.
    
      Mr. Cobb, the sheriff. As I learnt after the sale, only one of the Brannon executions was actually marked wait orders in writing ; but I had verbal instructions to wait in both, and I did not levy or sell under either of them. Under the Garrett execution, I had levied upon some personal property as well as the land ; but the personalty, after what Mr. Perrin said to me, I would not sell, because Mouchat did not indemnify.
    Brown, the defendant, was present either when Mouchat ordered the levy, or at the sale. He said nothing to me. Mouchat came several times to see about it, and was at sale.
    The sale was 1st Monday in February, 1843. The proceeds of sale are yet in sheriff’s hands unclaimed.
    I held that as between these parties, the Garrett execution must be considered to have been paid before first of January, 1843,. and could give no efficacy to a subsequent levy or sale.
    That the sale could not be supported by the junior executions, in which orders to wait had been given, if the purchaser knew of the payment of the older execution, and of the orders given under the junior ones — which knowledge I referred to the jury.
    That although it ■ might be that the officers of court could direct proceedings for collection of costs in opposition to the instructions of the plaintiff, it would be presumed, where no demand of the costs had been made and no special instructions given, that the officers acquiesced in the orders to wait. That the sheriff acquiesced, was made manifest by his declaring that he did not act at all under the junior executions.”
    The plaintiff appealed, and now moved this court for a new trial, on the grounds,
    1. Because the presiding Judge held that a levy under an execution unsatisfied on its face at the time of the sale of the land, though subsequently set aside, gave no authority to the sheriff to sell.
    2. Because his Honor held that two subsequent executions to the one by virtue of which the sheriff levied, one of which was under wait orders, the other not certainly known to be, were insufficient to support the sheriff’s sale.
    3. Because his Honor held that the two junior executions being under wait orders, and the costs unpaid, the presumption was, that the officers of court acquiesced in wait orders, without express instructions to the contrary, and that the sheriff could not sell for costs.
    
      Wilson, for the motion,
    cited 1 McM, 342; 2 Sp. 90; 1 Hill, 245 ; 1 Rich. 18 ; lN.di McC. 347; 2 Hill, 393 ; 2 Bail. 361; 1 Bail. 59 ; Harp. 116; 10 Johns. R. 381; 7 Wend. 85 ; 17 Johns. R. 167; 20 Johns. R. 49.
    
      Perrin & McGoioen, contra.
   Curia, -per

It is material to remember in this case that the plaintiff here was the real plaintiff in the senior execution, and by the verdict has been found to have been aware of the payment of that execution and of the orders given upon the junior executions. He is not like an innocent purchaser without notice, who might say that he looked into the sheriff’s authority and found the old execution standing open, and one of the younger ones without any mark contradicting the directions of the process. He stands upon his strict legal rights, and is entitled to no favor beyond what they will give him.

The case of Hunter vs. Stevenson, 1 Hill, 415, shews that the actual payment of the senior execution deprived it of all efficacy as authority for the sheriff, even in behalf of one who purchased without notice of the payment:— much more, in behalf of the plaintiff who received the payment.

The junior executions directed the sheriff to levy without delay. As to the debts to be collected, there is no doubt that the plaintiff in execution or his agent could give orders to wait, which the sheriff was bound to obey. The orders were rendered much more notorious and more easy of proof, by being written on the process : but when proved, were just as effectual against persons having notice of them, if verbal, as if written. They forbade the sheriff to proceed : and notice of them brought home to this plaintiff prevents him from saying that he was misled by the seeming authority which the sheriff was allowed to retain.

As to the costs, the proof is, that the sale was not made at all under the junior executions : and the court is satisfied with the view taken on the circuit, that after orders to wait from the plaintiff in execution, some act, on the part of some officer, contradicting those orders, is necessary to authorize the sheriff’s proceeding for costs only.

The sale to the plaintiff having been procured by himself, and being unauthorized by any authority to the sheriff, could confer no title.

The motion is dismissed.

Richardson, O’Neall, Evans and Frost, JJ. concurred.

' Butler, J. absent.  