
    Woodward Manning vs. Peter Dove.
    A judgment by confession on sum. pro., taken during vacation, is valid though not entered on the journal.
    The confession endorsed on the process, and signed by the defendant, is, it seems, a sufficient judgment, in such a case.
    
    In computing the time of a sheriff’s advertisement, the day it commenced and the day of sale, may both be counted : Semble.
    
    A sheriff’s deed being an estoppel upon the party as whose property the land was sold, he cannot object to its validity, because the land was not advertised for sale for the full time required by law.
    A question of fraud- as to chilling the bidding at a sheriff’s sale, is one for the jury to decide.
    "Where, the description of the land in a sheriff’s levy is in general terms, he may, very properly, describe it accurately and fully in his deed.
    In trespass to try titles, a verdict for the land on which the defendant lives is sufficiently definite.
    In trespass to try titles, a survey is not always necessary in order to identify the land. Other evidence may be resorted to for that purpose.
    Where a defendant takes no step towards availing himself of the benefit of the homestead law before levy and sale of his land, it is doubtful if he can do so afterwards.
    BEFORE GLOVER, J„ AT MARION, SPRING TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbe action was trespass to try tbe titles to a tract of land levied upon and sold by Elly Grodbold, Sheriff of Marion district, on tbe 5tb of March, 1855, as tbe property of defendant and bought by tbe plaintiff for three hundred and thirty dollars. The sheriff’s deed, conveying three hundred and twenty acres, more or less, described the land by boundaries, which a witness said were correct, and that the number of acres mentioned in the sheriff’s deed he also believed correct.
    “ The levy and sale were by virtue of a fi.fa. on a summary process, in favor of N. Phillips and entered in the sheriff’s office on the 7th March, 1854, and the judgment was by confession endorsed on the process the same day. There were several other executions against the defendant on which the levy was endorsed, and some having a prior lien to N. Phillips’.
    “ The sheriff’s advertisement, describing the land as that on which the defendant lived, was printed in the ‘ Marion Star,’ a weekly paper, on Tuesday, the 13th February, 1855, but it was prepared on the Saturday preceding.
    “The defence was rested mainly on the fraud alleged to Laye been, practiced by tbe plaintiff on the day of sale, and the evidence on this point was as follows:
    “ Plly Godbold, sheriff, stated that the plaintiff, on the day of sale, did not bid himself but got Jesse Lee to bid for him. Seemed anxious to know if sheriff would sell, and said he would not give any thing worth for it. Hamer, who had an execution against defendant, and D. Bethea, Col. Phillips and Mr. Miller bid.
    
      “ Robert G. Hamer inquired of plaintiff respecting the quality of the land, who said it was poor. He did bid, but from the vagueness of the advertisement and the poorness of the land, he was induced to stop his bidding. There was a large crowd. This land had been offered for sale on a previous sale day, and the plaintiff was bidding but quit at the request of witness, and sale was stopped.
    “ Ool. Phillips was at the sale, and bid to about three hundred dollars — Mr. Miller said to him,’ there are five hundred acres, and it is worth five dollars per acre, and plaintiff observed there are only about three hundred acres, and I have land adjoining for which I will be glad to get two dollars per acre, and this had an influence on his bidding, but he cannot say to what extent. There were other bidders after he quit.
    “At present prices, the value of this land was estimated at from three to five dollars per acre, and Willis T. Norman stated, that within the last two years, lands there have been sold by the sheriff at one and two dollars per acre.
    “I submitted the question of fraud to the jury, and instructed them, that if they believed the plaintiff had chilled the biddings either by the suggestion of what was false or by the suppression of the truth, they would find for the defendant. I do not understand that any exception is taken to the charge in this respect; but it seemed to be insisted that the Court and not the jury is the proper tribunal to decide questions of fraud.
    
      “ Tbe jury found for tbe plaintiff, ‘ tbe land on wbieb tbe defendant lives and five dollars damages.’ ”
    Tbe defendant appealed, and now moved tbis Court for a new trial on tbe grounds :
    1. That the presiding Judge charged tbe jury that tbe plaintiff bad made out a good title: whereas, it is submitted that tbe plaintiff showed no judgment under which tbe land was sold by tbe sheriff.
    2. That tbe plaintiff himself proved by tbe public advertisement in tbe Marion Star, that tbe land in dispute bad only been advertised twenty days, to wit: from 13th February, 1855, to 5th March, 1855, tbe day of tbe sale, and defendant not being present bad no notice of sale.
    3. That tbe presiding Judge should have charged tbe jury that tbe facts proved constituted a fraud if believed, because fraud is a question of law for tbe Judge to decide, and if tbe facts proved constituting fraud are capriciously rejected by tbe jury, their verdict should be set aside.
    4. That tbe facts proved and not contested (nor tbe credibility of tbe witnesses attacked) constituted fraud, and tbe presiding Judge should have so charged tbe jury.
    5. That tbe levy endorsed on tbe execution did not describe tbe land conveyed by tbe sheriff’s deed to plaintiff
    6. That tbe verdict of tbe jury is void for uncertainty.
    7. That tbe plaintiff did not locate tbe land in dispute by any competent testimony.
    8.That it was in evidence that tbe cause of action on which tbe alleged judgment authorizing tbe sale was rendered, arose after tbe homestead Act of 1851, and tbe presiding Judge should have charged tbe jury that a sale of tbe residence or homestead was illegal.
    
      Miller,' Sellers, Bethea, for appellant.
    Eraud in a sheriff’s sale may be set up by tbe owner, tbe defendant in tbe fi. fa., under which tbe land was sold, in an action to try title, against tbe plaintiff, tbe purchaser, so as to defeat bis recovery. Bradly vs. McBride, Eich. Eq. Ca., 202. When bidding is stifled, tbe sale of land by tbe sheriff will be set aside. Thrower vs. Gureton, 4 Strob. Eq. 155; Martin & Walter vs. Hvans, 2 Eich. Eq. 368; Carson vs. Law, Ib. 296 ; Hamilton vs. Hamilton, Ib. 355. Eraud is a question of law for tbe Court to decide on a state of facts proved. Smith vs. Henry, 2 Bail. 124. Eraud makes a sale absolutely void, whether tbe fraud proceed from tbe vendor or vendee. Ib. 124 and 125, citing Hildreth vs. Sanders, 2 John. Cb. 35. Tbe entry on tbe minutes or journal of tbe Court, by tbe Clerk of tbe Court, is tbe only evidence of a judgment in tbe sum. pro. jurisdiction. Boatwright vs. McCall, 2 Hill, 438. "I know of no other judgment in these cases.” Ib. Curia, per Johnson, J.; 2 Mills, Con. E. 247; 4 McO. 291. Tbe production of tbe judgment is indispensable when tbe party claims land under a sheriff’s sale on a fi.fa., Ib. 438, citing Barkley vs. Screven, 1 Nott & M’C., 408. See also Brown vs. Hill, 3 Hill, 4. Tbe endorsement on tbe back of tbe process, of tbe judgment by tbe Clerk or tbe Judge, is not sufficient, Ib. 439. A confession on tbe process can be nothing more than an authority as in any other case, to tbe Clerk to enter tbe judgment on tbe journals. Tbe verdict is uncertain. Hayward vs. Bennet, 1 Tr. Con. Eep. 329; Cones & Owens, 5 Strob. 139; Kirkland vs. Way, 3 Eich. 4. As to advertising. Act of 1839, sect. 58, 11 Stat. 37; Lewis vs. Brown, 4 Strob. 293 ; Obmnon vs. 
      Kirkland, 2 Strob. 29 ; Young vs. Gathcart, 2 Strob. 221; Same vs. Same, 3 Strob. 304.
    
      Evans, contra.
   Tbe opinion of tbe Court was delivered by

Glover, J.

Tbe several points made will be considered in tbe order in wbicb tbey arise out of tbe grounds of appeal.

1. Tbe defendant’s confession endorsed on tbe process was introduced in evidence, and it is objected, tbat tbis is not tbe judgment witbin tbe summary process jurisdiction, unless it be entered on tbe journal of tbe Court, and tbat sucb entry is tbe only judgment. Tbe authorities relied upon do not sustain tbis position in tbe terms in wbicb it is stated. According to tbe practice of tbis Court, tbe clerk is required to enter sucb cases as are beard by tbe judge without tbe intervention of tbe jury, and not cases by confession, (McCall vs. Boatwright, 2 Hill, 438,) and sucb a distinction is well founded. In tbe former case, only tbe result is briefly stated by tbe judge on tbe docket, wbicb would be a very imperfect memorial of a judgment; whereas, tbe defendant’s confession on tbe record is tbe act of tbe party specifying tbe amount and nature of bis indebtedness. If an entry on tbe journal be tbe only judgment witbin tbe summary process jurisdiction, (and in tbis unqualified language tbe position was taken,) it follows, tbat no judgment by confession in tbat jurisdiction, can be obtained, except during term time, as tbe clerk is not authorized to make sucb entry between terms; and as creditors whose debts exceed tbe process jurisdiction may enter up their judgments, immediately, upon a cognovit actionem, an undue advantage would thereby be secured to them. (Union Bank vs. Magrath, 2 Speer, 202.) Tbe clerk’s entries, referred to in McCall vs. Boatwright, are now regulated by statute. Tbe eigbtb section of the Act of 1839, (11 Stat. 71,) specifies the yarious entries wbicb tlie Common Pleas Journal shall contain, and, among others, mentions decrees upon trial before jury or judge, or by default, and confessions during Court.

2. The second ground is, because the sheriff did not advertise the land twenty-one days as the law directs. An examination of the cases respecting the computation of time, justifies the remark of Lord Mansfield, “that much more subtlety than argument has been used to mark a difference in reference to time.” (Pugh vs. Leeds, 1 Cows 715.) The general inclination of the Court is to include or exclude the day in 'the computation, so as to effectuate the deeds of the parties, and not to destroy them. (Williamson vs. Farrow, 1 Bail. 611.) Applying this rule and including the day, effect will be given to the sheriff’s conveyance. But can a defendant in execution, who continues in possession of the land after a sale by the sheriff, avail himself of this objection in a suit against him by the purchaser? In O'Neall vs. Duncan, (4 McC. 246,) it was held, that the title of the sheriff^ who is the organ of the law to convey the defendant’s right, is the deed of the defendant, and that it operates as an estoppel. He cannot show that the title was not in himself, and that he held as the tenant of another; nor should he be permitted, where no fraud is imputed to the sheriff’ to aver against the deed because of an alleged official neglect, depending upon a subtle computation of time.

3. The third position taken, embracing the third and fourth grounds, is, that the facts proved constitute fraud, which is a question of law, and that the judge should have so instructed the jury. There may be circumstances constituting badges of fraud which are conclusive and admit of no explanation, and in such cases the jury should be instructed that they are incapable of explanation. It is not perceived that the circumstances, in tbis case, conclusively established fraud, or that the fair or fraudulent character of the transaction should not have been submitted to the determination of the jury. That the plaintiff bid by an agent; that he misrepresented'the quality, value, and number of acres, and that the biddings were thereby chilled, were circumstances not conclusive of the party’s conduct, and admitted of explanation, and any doubts which were created by the evidence the jury must resolve.

The other grounds were not earnestly pressed, and only a brief examination of them will be necessary.

5. Debtors in execution do not generally furnish the sheriff such indicia as will enable him to describe real estate with certainty in his levy; and if, from information received after the levy and sale, he shall more particularly identify the land, the difference between the description in his levy and that in his deed will not defeat the latter. Where the fact of a levy on property is established, a strict conformity between the levy and conveyance, in the description, is not necessary, and for the purpose of ascertaining what land was levied on and sold, we must look to the sheriff’s deed. Without a legal levy the sale would be unauthorized and the deed void ; but where the levy is fully recited in the sheriff’s deed, may the defendant in execution who continues in possesssion be allowed to aver against the deed of the sheriff, who, pro hac vice, is by law made hi's agent to convey the land ? (O’Neall and Duncan, ante, and Sawyer vs. Leard, 8 Rich. 267.) If the description of the land endorsed on the execution differed from that in the deed, there was no evidence showing that it was not the same land.

6. A verdict may be aided by the description in the plat or declaration, and by reference to them or by its own terms, designate the land the jury intend to find. {Jones vs. Owens, 5 Strob. 134.) In a conveyance land may be described by tbe name of tbe owner or occupant, and “tbe land on wbicb the defendant lives” is generally sufficiently definite to enable tbe plaintiff to take possession.

7. In actions of trespass to. try titles, tbe requirement of tbe Act is not imperative that a survey shall be made to identify tbe locus in quo, and other evidence may be introduced for that purpose. (Frean vs. Cruikshank, 3 McC. 84; Thomas and al. vs. Jeter and al, 1 Hill, 380.) In this case a witness verified tbe description given of tbe land in tbe sheriff’s deed, by proof of boundaries, and, to some extent, superseded a survey.

8. It will not be necessary to consider, whether a sale of tbe defendant’s residence was contrary to tbe Homestead Act of 1851, (11 Stat. 85,) and, therefore, illegal; as tbe cause of action in one or more of tbe other cases against tbe defendant, and on wbicb tbe levy of this land was endorsed, arose prior to tbe passage of tbe Act. It may, however, admit of doubt if tbe defendant can avail himself of tbe benefit of that Act after tbe levy and sale of bis domicil and a conveyance to tbe purchaser, without having taken any steps to make' out tbe fifty acres wbicb are exempted from levy and sale.

We are, therefore, of tbe opinion, that tbe appellant can take nothing by bis motion. ‘

Motion dismissed.

O’Neall, Whitíter and Muitro, JJ., concurred.

Motion dismissed.  