
    PARK’S LESSE, vs. LARKIN.
    
      Ejectment plea not guilty.
    
    The sheriff by virtue of anexecution may sell the land of the debtor although another person be in possession claiming in opposition to the debtor.
    The plaintiff claimed under a grant for 640 acres made to Mary Asher, dated March the first 1797, and registered May 25th, 1798. It appeared from the copy of a record produced that Mary M’Cloud, was indicted in Hamilton District for an assault and battery, in which Mary Asher was prosecutrix; the defendant was found not guilty, and the prosecutrix taxed with the costs. Several excutions issued without effect; after which a fieri facias, was levied on this tract of land, it was sold on the 12th of March, 1801; and the sheriff conveyed it to the plaintiff, March the 19th, 1801, the conveyance was registered August 28th 1801.
    Scott, for the defendant,
    objected that the record was not set out verbatim, and cited the case of Wilcox, vs. Rhea, in Haywood’s Reports, 110.
    Overton, j.—The record is sufficiently regular; it was not necessary to state verbatim, the intermediate executions; the one under which the land was sold is set out verbatim, after stating the judgment and the proceedings previous thereto; but if it were necessary the intermediate executions are stated agreeably to the books of entries from which it does not appear that the formal parts in the beginning, or end of a process, are set out.
    
    Campbell, j.—The record is regular; it shews the proceedings, and judgment which was the authority for issuing the execution under which the sale was made, and the execution itself is set out verbatim.
    
      White, j.—Taking the certificate of the clerk as true, it is a perfect record of the proceedings in that cause. It does not seem necessary that the intermediate executions should be set out at all.
    The case in Haywood, does not apply—In that the clerk certified, as it appeared to him; in this the clerk certifies it to be a true transcript.
    In that case it was determined that the clerk should have certified the words of the record, and not his own opinion of it, which was correct.
    Let the record be read. Mr. Payne was introduced as a witness, who proved that Mary Asher, had never been in possession of the land and that the defendant was in possession at the time of the sale by the sheriff, claiming adversely.
    Scott and Williams for the defendant,
    contended that agreeably to a decision which had lately taken place at Knoxville, no person can convey a titile to land when another is in possession claiming adversely; and they took it to be clear, that the sheriff could convey no greater right than Mary Asher herself could have done, had she sold at private sale, which would be none at all, and therefore the plaintiff could not recover.
    Miller and Whiteside for the plaintiff.
    Though the grounds upon which the case alluded to at Knoxville, rested do not apply to the state of society in this country, the judges conceived themselves bound by the principles of the English decisions in this respect. This being the case, the court will not extend the effect of that decision further than the reasons upon which it is founded will clearly warrant.
    
      
      See.1.Dall. 63. 93.
    
   Overton, j.

—In order to understand this subject distinctly, it may not be improper to take a short view of the doctrine of conveyance, so far at least as respects the common assurance of bargain and sale.

Feoffment, was the common law mode of conveying, in which it was necessary that livery of seizin should he made, so that no person could convey in this way unless he had possession—and consequently was able to deliver it. The statute of 27. H. 8. C. 10. introduced the idea of conveying by deed of bargain and sale. This statute was made to remedy the inconveniencies, which had arisen by frequent conveyances to uses. In this way it had happened, that persons holding and possessing lands were but trustees for others who recovered the profits—The person in possession by the principles of the common law, was considered as the owner of the estate.

Agreeably to the principles of equity the person who had paid the consideration money, was entitled to the use or profits of the land, though the conveyance might have been made to another. The effect of this statute was, to transfer the possession to the use, which had been or might afterwards be created, making the cestuique use the complete legal owner.

Before this statute the payment of money for land raised the use, and this statute annexed the possession in legal understanding to it, so as to complete the title. Hence, in bargains and sales, a consideration is necessary to raise an use, after which the statute transfers the possession whithout actual livery of seizin; it is however understood that this statue is bottomed on the principles of the common law, as to transference of possession. Either by the common law, or statute, there must be a possession in the trustee, or bargainor, of which livery of seizin may be made, in one case, or upon which the statute might operate in the other. If there was no possession, either actual or constructive, the statute could not transfer it to the use; which appears indispensibly necessary in this mode of conveyance.

A person holding a title to land, of which no person is in possession, may be said to be constructively in possession as to legal purposes; but when another is in possession, claiming adversely, actual or constructive possession being excluded, the statute cannot operate, and consequently a deed of bargain and sale would be void, Independent of this view of the subject, these conveyances are considered as a species of maintainance, punishable by the common law; nor has it yet occurred to me, that the decision at Knoxville, was in the least incorrect or inapplicable to the situation of this country.

The next inquiry will be whether our statute has altered this principle in conveyancing; so far as relates to the sheriffs sales. The act of 1794. C. 1. s. 23. has these words "and whereas by the policy and genius of our present Government, lands and tenements ought to be made subject to the payment of his just debts, when the debtor bath not within the limits of the territory, goods and chattles sufficient to satisfy the same"

In the construction of statutes such a meaning ought to be given to the law, not inconsistent with the words as will if possible effectuate the intention of the legislature. It is moreover a received rule of construction, that acts made for the benefit of creditors or for the suppression of fraud, shall be liberally expounded. This purpose of the legislature can be attained in no other way, than by giving a sheriffs deed effect by virtue of this statute, and not pre-existing laws. It has been already decided, that the sheriff after sale is only to make, a deed. He has nothing to do with delivering possession to the purchaser, who is put to his action. This shews at once, that the common law idea of possession, was not in the contemplation of the legislature when making this act. The act designed to transfer the right and to make the conveyance effective, in recovering the possession. In this manner the intention of the legislature can be carried into effect; otherwise either through design, or accident it is liable to be defeated, in a great variety of instances. By this act that principle of the common law, and statute of H. 8, which supposes the possession to accompany the right is taken away.

The act of law, cannot work an injury, and therefore this mode of conveyance cannot be maintenance, as it might be in the instance of an individual sale which is the case put of a decision at Knoxville. One is the act of the law the other of the party.

In my opinion therefore, the sheriffs deed is valid. and a complete transfer of Mary Asher's right, notwithstanding the adverse possession of the defendant.

White, j.

—Stated that the only difficulty in the case, was created by the testimony of Mr. Payne, which went to shew that at the time the sheriff sold the land, Asher was out of possession, and the defendant in possession claiming for himself. It has been insisted that the plaintiff cannot recover because it has been decided by this court, that a man out of possession, cannot convey, so as to enable his purchaser to maintain ejectment, and that if Mary Asher could not have conveyed, the sheriffs deed will be no better than hers; on the other side, it has been said, that the principles of that decision do not govern this case. The decision alluded to was this, that a man out of possession, could not convey, if any other person claiming in opposition, was at the time in possession. If this case was like that, I would adhere to the opinion then given; but at present my opinion is, that if you find the title to this land, to have been in Asher; that the sheriff sold it to Parks and that Larkin is in possession, you ought to find for the plaintiff; and if the defendant be dissatisfied with the verdict, he can by a motion for a new trial, have the opinion of the court upon the point.

Campbell, j.

—Let the deed go to the jury.

Note. The jury found for the plaintiff, upon which a rule was obtained for a new trial. The point of law was not stirred again, and the rule was discharged. 
      
      (2) Wil. ed. Bac. Ab. 714. n.
     