
    William Barmore vs. John Jay.
    .To make out a title under sheriff’s sale, extrinsic evidence is admissi* ble to show that an execution was lodged, and that the land was sold under it, and the deed made on different days from those stated in the entry and return endorsed.
    An objection to the regularity of a resurvey, (in an action to toy titles,) according to the rules of court, must be made before the cause has gone to the jury.
    Tried at Abbeville, Spring Term, 1823.
    Trespass to try titles to land.
    THE plaintiff in deducing his title, gave in evidence a deed made by John N. Newby., late sheriff of Abbeville, to himself, which purported to have been made in pursuance of a sale under execution against the present defendant, at the suit of Wm. Owens. The judgment on which this execution was founded, appeared to have been signed on the 12th August, 1819, and the memorandum endorsed on the execution, as to the time it was lodged in the sheriff’s office, bore date the 11th August, one day before the judgment.
    The deed was dated the 6th January, 1820.
    The execution was levied on the land in dispute, the 19th August, 1819, and the following return was endorsed : “ sold the land to Wm. Barmore, 6th March, 1820. Fifty dollars made. (Signed John N. Newby.”) So that by comparing dates, it would appear that the deed was made two months before the sale.
    The court permitted the plaintiff to prove by parol, that the execution was not lodged in the sheriff’s office until after the signing of the judgment; although from the entry endorsed, it appeared to have been done before $ and the deed was not made until after a sale had been actually made, which the witness thought was on the sale day in January, 1820) (the date of the deed,) instead of the 6th of March, as the return purports.
    In closing the plaintiff’s evidence, a resurvey made under an order of court, was. offered to prove the locus in . quo. This was .objected to on the ground that the defendant had no notice of the time of making it. The objection was overruled as coming too late after the case had. gopp to the'jury.
    A verdict was found for the plaintiff, and the defendant moved for a new trial on tire following grounds :
    1st. That parol evidence was improperly admitted to show that the execution was lodged, and that the land xvas sold, and the deed made. on different days from those stated in the entry and return endorsed.
    2nd. That the survey ought not to have been given in evidence, as the defendant had not notice of the time of making it.'
   Mr. Justicc-JoAn-wra

delivered thp opinion of the court:

The first ground of this motion is advocated on the broad and well established principle that parol evidence is inadmissible to add to, vary or contradict a.written instrument. But when associated with the reasons on which \t is founded, it is apparent that it -only applies to the essential and substantial parts of■ the writing, and not ta those that are merely formal. Thus, in Goddard’s case,' (2 Rep. 46. Phillips 428,) it was held that the delivery pf a deed may be shown by parol on a day different from that on which it bears date ; from which time alone, it can take effect. Qn this principle alone, in the case of Jackson, ex dem. vs. Schoomaker, (2 Johnson’s Rep. 230,) the court admitted. parol evidence to shew that a deed bearing datp in 1714, was not executed until 1717, Sind chief justice KenJ remarks that the date is no part of the substance of the deed, and not necessary to be inserted. The real date is the time of delivery.

If this principle is to be regarded as operating on the date of the return, or the date of the deed, the same result will follow ; for the witness stated with certainty, that the deed was not executed until after the land was sold. If on the former, it is made to correspond with the date of the deed. But if the date of the return is incontrovertablo, it must control that of the deed which pan take effect only from that time, and in either case the plaintiff is entitled to recover.

Glascock, for the motion.

Noble, contra.

The same rule applies with regard to the signing of the judgment, and the lodgment of the execution. This was evidently a mere clerical mistake. The execution was not acted on for several days after, and there was no motive for lodging it before the judgment was signed.

The rule of court is conclusive on the second ground. An objection to the regularity óf a resurvey must be made before the cause has gone to the jury.

The motion is refused.

Justices Colcocle, Nott, Richardson and Huger, concurred.

Justice Gantt dissented.  