
    John Doe, on demise of Robert Huntington, vs. James S. Pritchard.
    Whether if a sheriff levy on and sell the land of an indorser under an execution against the maker and indorser, without the affidavit being first made, as required by the statute, that the maker has no property subject to execution &c., the sale will be void or not, it will not be void if such affidavit be made before the levy and sale, but instead of being filed, as the statute provides, with the papers in the cause, is left with the sheriff until after the sale, even though the plaintiff in execution be the purchaser, the statute being thereby substantially complied with.
    It has been decided by this court, that mere irregularities on the part of the sheriff in the sale of real estate will not vitiate the title of a bond fide purchaser, as such sale is not the exercise of a mere naked statutory power.
    In an action of ejectment, where both parties claim under purchases at sheriff’s sale, against the same defendant, it is not necessary that the plaintiff should make out his title to be good as against the world ; if the defendant set up no title, except that of the judgment debtor, the plaintiff is not required to prove the nature or equality of the judgment debtor’s title; if he can establish that title to be in himself, he is entitled to recover.
    In error from the circuit court of Leake county; Hon. Morgan L. Fitch, judge.
    John Doe, on the demise of Robert Huntington, brought his action of ejectment, to recover the south half of lot number two, in square number eleven, in the town of Carthage in said county. James S. Pritchard was made defendant. The lessor of the plaintiff claimed the premises in dispute, as purchaser of the same at sheriff’s sale, under an execution issued from the circuit court of Leake county, at the suit of Patrick Fanning against George S. Fitler, principal, and George Koher, indorser. The execution under which the lessor of the plaintiff bought, did not state that Koher was indorser; it ran against the defendants jointly.
    The defendant, Pritchard, claimed the premises in dispute, as purchaser at marshal’s sale, under an execution issued from the United States circuit court for the southern district of Mississippi, at the suit of Walter F. Corfield, for the use of Charles Bayard, against the said Koher, principal, and John D. Boyd and James Warren, sureties, by forthcoming bond.
    The premises were sold in both cases as the property of Koher.
    The judgment in the Fanning case was entered on the 10th of October, 1838; the bond forfeited in the Corfield case on 5th of November, 1838; the marshal’s deed to Pritchard was dated 26th of August, 1839; the sheriff’s deed to the lessor of plaintiff was dated 21st of August, 1843.
    The lessor of the plaintiff proved on the trial of the suit, that Koher, in the autumn of 1838, and in the winter, spring, and summer of 1839, was in possession of the disputed premises, and claimed the same as his property until the sale to Pritchard. The premises were also identified by proof, and on the part of the defendant it was admitted, that his tenants were in possession of the same when the original declaration was served on them.
    The lessor of the plaintiff then introduced the record in the case of Fanning against Fitler and Koher, inclusive of executions ; and also an affidavit made by Robert E. Halford, the owner of the judgment, as required by the Gth section of the act of 1837; that Koher had the property subject to a levy, &c., which affidavit was made on the 13th day of July, 1843, (and before the levy, which was made on the 18th day of July, 1843,) but not filed in the papers of the cause until the 31st of May, 1844, although placed in the hands of the sheriff before the levy.
    The lessor of the plaintiff then proved by L. D. Williams, the sheriff of Leake county, that the affiant, Robert E. Halford, placed the affidavit in witness’s hands before he made the levy on the disputed premises; that he retained the same for his own protection, until about the time it was filed among the papers in the cause; that he delivered the affidavit to the lessor of the plaintiff at his request, and at the time of doing so, took a copy of the same to keep for his own protection. On his cross-examination, witness stated that the affidavit was placed in his hands before the day of the levy, perhaps on the day of its date; that at the time, Halford was owner of the judgment in the case; that he could not say that Halford and the lessor of the plaintiff were partners; that the lessor of the plaintiff never told or intimated to witness that Halford was his partner; that Halford bid off the property in dispute in the name of said lessor of the plaintiff, and directed witness to make a deed to him for the same; that no money passed at the time of the sale, excepting for costs, which was paid some time afterwards ; that a credit of $1220 was placed on the execution under which the property in dispute was sold; that witness does not know but that the lessor of the plaintiff had paid the money to Halford; that Halford acted as the agent of the lessor of the plaintiff in the purchase of the disputed premises, and was his general agent before and after the sale at Carthage, in said county.
    The lessor of the plaintiff then adduced in evidence the sheriff’s deed, &c., and rested his case.
    The defendant, on his part, read in evidence the record in the Corfield case, inclusive of executions, and also the marshal’s deed, dated 26th of August, 1839.
    The defendant here rested his cause.
    The lessor of the plaintiff asked the court to instruct the jury, “ that the affidavit, as placed in the hands of the sheriff, was a substantial compliance with the statute requiring the same to be made and filed.” This was refused. The court, at the request of the defendant, instructed the jury,
    1. That if no affidavit, that the principal debtor had not any property in the state, was made and filed among the papers in the cause before the levy and sale of the lot, the sale was void.
    2. That the defendant Pritchard, being in possession of the lot, had a right to keep the possession against every person who had not a good and sufficient legal title to it.
    3. Proof that Koher, the defendant in the execution, was in possession previous to the possession of Pritchard, does not constitute such title as would enable the plaintiff, claiming under Koher, to recover from Pritchard.
    The jury found for the defendant, and .the plaintiff sued out this writ of error.
    
      Wm. and Wm. G. Thompson, for plaintiff in error.
    1. This court has already decided that the 6th section of the act of 1837, requiring the affidavit, is directory to the sheriff. 4 S. & M. 139.
    2. It is insisted, that no affidavit was required in this case, because the clerk did not, as required by the 5th section of the act, indorse on the execution the names of the drawer and indorser, which indorsement is also evidently designed for the direction of the sheriff. The execution was regular on its face, and from a court of competent jurisdiction; and whatever the sheriff might hear of its irregularity, he was not only at liberty, but it was his duty to levy on the property of Koher, unless Koher himself had made and filed with the sheriff the affidavit required by another statute. R. C. 210; H. & H. 641; 5 Hill, 440; 24 Wend. 485; 16 lb. 562; 5 lb. 170.
    3. Still it is insisted, that the affidavit of Halford, placed in the hands of the sheriff, before his levy on the premises in dispute, was a substantial compliance with the 6th section of the statute, requiring such affidavit to be made and filed. The said section being directory to the sheriff, a substantial compliance therewith will suffice. 5 Hill, 16; 4 S. & M. 139; 4 lb. 628; Rev. Code, 210; H. & H. 641; 4 S. <fc M. 150.
    4. The levy and sale cannot be void, for other reasons. Fraudulent conveyances, made utterly void by statute, as against creditors, become valid as to them, when not made to suffer the mischief intended to be remedied. Freem. Ch. 343. Koher has not suffered the mischief remedied by the act of 1837. This is also in accordance with a leading rule from the construction of statutes. 1 Chit. Bl. 60.
    
      Ordinary deeds of land, unless duly proved or acknowledged and recorded, are made void by statute, as against creditors, yet an unregistered deed is valid as to them, if they have notice thereof; and a substantial compliance with the statute, in regard to the acknowledgment of a deed, will satisfy the law. 1 S. & M. 70, 443; H. & H. 343, sec. 3; 345, sec. 12.
    Counsel argued at length that this was a substantial compliance with the statute, and cited and reviewed in an elaborate brief, the following authorities : Schneider v. Norris, 2 Maulé & Sehv. 286; 2 Rev. Stat. (N. Y.) 369, § 37, 38; 6 Wend. 522; 2 R. S. 370, § 42, 43.
    5. Viewing the statute requiring the affidavit in the light of a supersedeas of execution as to the indorser, the levy and sale are by no means void, if even voidable. 5 How. (Miss.) 548; 2 Saund. 72, b.; 2 lb. 101, i.
    
    6. If the omission to file the affidavit in the clerk’s office before the levy be an irregularity, it is such an irregularity as is amendable, saving the rights of third persons derived from Koher since the levy and sale, and which are none. 3 Cow. 39, note a; 2 lb. 410; 1 Caines’ R. 9; 3 S. & M. 24; 1 Cow. 218; 5 lb. 269.
    7. When the plaintiff in the execution becomes the purchaser under it at sheriff’s sale, he is chargeable for all irregularities affecting the execution. It will be contended, that the lessor of the plaintiff in this case is equally chargeable; and if he be, it may be proper to inquire in what respect, and to whom a plaintiff purchaser, at sheriff’s sales, is chargeable from such irregularities.
    If his execution was issued on an erroneous judgment, his purchase is valid, for his execution is not affected by the error in the judgment, and in case the judgment be afterwards reversed, he is not bound to restore the property purchased, but the money bid for it; and so if the levy and sale be affected by any irregularity on the part of the sheriff. 1 Strange, 509; 2 Saund. 101, z] 4 S. & M. 622 ; 5 How. 658.
    If his execution was issued upon a judgment satisfied, (dehors the record,) his purchase is void; but a purchase by one not a party to the suit, is valid in such a case, unless he have notice of the satisfaction. Jackson v. Cadivell, I Cow. 622; 3 How. 166.
    If his execution be affected by an irregularity, which is amendable, his purchase is valid. 4 How. 269,270; 4 Wend. 462; 12 lb. 96.
    If his execution be affected by an irregularity which makes it voidable, it has the effect of a regular execution while it remains in force, and no person has a right to question it but a defendant in the suit, 'and he must do it directly in the same suit, and not collaterally in another; and much less can it be done collaterally by any other person in another suit. An execution is not voidable, unless the defendant be competent to avoid it directly; a creditor or purchaser in another suit cannot do it. 4 How. 270; 6 lb. 548; 1 Cow. 711; 2 lb. 454; 13 J. R. 378, 529, 537; 8 lb. 361.
    Besides, the exemption of property from execution is a personal privilege, to be claimed only by the person entitled to enjoy it. 1 Cowen, 114.
    8. The making and filing of the affidavit cannot be considered a condition precedent, strictly to be performed before a levy on the property of the indorser.
    The right of exemption from execution, of the indorser’s property, depends on the fact, as respects the plaintiff’s right to satisfaction, that the principal has sufficient property in the state to satisfy the execution. When this fact does not exist, this right of exemption ceases. The non-existence of this fact is clearly a condition subsequent to this right of exemption, or rather, it is a contingency which has happened, and not a condition of any kind. When this right of exemption ceases, the plaintiff’s right to satisfaction out of the property of the indor-ser, attaches without any reference to the affidavit, which does not say sufficient property, &c., but no property, &c.
    9. A substantial performance of a condition precedent will often suffice, even to vest an estate. Livingston v. Livingston, 15 Wend. 290; 12 lb. 452 ; 5 How. 552.
    10. The second instruction given, though perhaps true in the abstract, was not warranted by the testimony; for a possessory title is a good and sufficient legal title in an action of ejectment, and the party having the better right of possession, will prevail, without reference to the actual possession by either. The action of ejectment was particularly framed for the .trial of this possessory right; both parties in the case claim under Koher, and neither, by the testimony, claimed more than Koher’s possessory right, and the lessor of the plaintiff by the elder judgment, under which he claimed, proved the better right.
    11. As to the said third instruction given, the objection to it is sufficiently enforced, as is also the said first instruction refused, by reminding the court that if the defendant be in the possession of land at the time of the rendition of the judgment against him, (or after), he has such an interest therein as is bound by the judgment, (unless he be in possession under a contract to purchase), and the land may be sold under an execution on the judgment, though held adversely at the time of sale; and that proof of such an interest by prior possession for less than twenty years, in the lessor of the plaintiff in an action of ejectment, is sufficient to put the adversary on his defence. 15 Wend. 171; 9 lb. 223; 9 Cow. 233; 7 lb. 637; 4 lb. 599; 10 J. R. 338.
    12. Although no money passed at the sale, excepting for the costs, &c., yet the lessor of the plaintiff is not the less a bona, fide purchaser. He stands in the place of the plaintiff in the execution, and when such plaintiff is the purchaser, he is not bound to pay the money bid, but is entitled to a credit therefor on the execution; besides, a sheriff cannot impeach his own return or deed, nor can his deed be collaterally contradicted by parol evidence. 19 J. R. 84; 3 How. 66; 4 lb. 506; 7 lb. 216; 23 Wend. 2S9; 7 lb. 83; 3 S. & M. 409.
    
      L. M. Garrett, for defendant in error, contended,
    1. That the sheriff’s power of sale was a naked statutory power, and that he had no authority to act until all the provisions of the statute were complied with. He cited Gantlei/s 
      
      Lessee v. Ewing, 3 How. S. C. R. 707, 714, per Catron, J.; Rev. Code, 193; Ibid. 200, sec. 20; the act of 1837, (Laws of Miss. 717.)
    2. The question then is, When did the sheriff’s naked power to sell arise under the execution under which Huntington bought? It is immaterial, as far as this case is concerned, whether the clerk indorsed on the execution, that Koher was indorser or not. If he had made such indorsement, the sheriff could not have levied on the lands of Koher, without the previous making and filing of the affidavit. And if the clerk failed to make such indorsement, his failure to do so could not enable the sheriff to convey a good title to a purchaser who knew the facts, by a levy and sale.
    3. This court has recognized the necessity of filing an affidavit, as a condition precedent to the right to levy on the indorser’s property. Hamblin v. Foster, 4 S. & M. 151; Gibson v. Hughes, 6 How. 318.
    4. I contend, then, that the sheriff’s naked power to sell the lands of Koher, did not arise until an affidavit was “filed among the papers in the cause,” not in the sheriff’s pocket. A paper cannot be said to be filed until it reaches its place of deposit. Garliclc v. iSangster, 9 Bing. 46; Rex v. Wacle, 1 Barn. & Adol. 861; White v. Willard, 1 Watts, R. 42; Fager v. Campbell, 5 lb. 288; Phil. Ev. vol. 3, 1083, by Cowen & Hill, note 740.
    Mr. Garrett replied to the argument of the plaintiff’s counsel, and reviewed at length the case Gantley’s Lessee v. Ewing, 3 How. S. C. U. S. R. 707, which he insisted was analogous in principle to the case at bar. He also cited and commented on Hamblin v. Foster, 4 S. & M. 139, and Gibson v. Hughes, 6 How. 315, insisting that the court, in the former case, had not held that the statute was merely directory to the sheriff.
    
      H. A. H. Lawson, on same side,
    Contended at length that the sale was void, for non-compliance with the statute, and cited Simonds v. Catlin, 2 Caines, R. 61; Laws of Miss. 1824, 1828, p. 717, sec. 5; 5 How. R. 80, and authorities cited; Chit, on Con. 536, 540, and notes; 4 S. & M. 139; 3 How. (S. C. U. S.) R. 707 ; 5 Hill* R. 440; 20 Wend. 485; 16 lb. 562; 5 lb. 170; 3 Phil. Ev. (Cow. & Hill’s notes,) 1083, n. 740; 5 Cow. 269.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of ejectment in the circuit court of Leake county. Both parties claimed by purchases under execution sales against the same defendant. The judgment under which the lessor of the plaintiff claimed was the oldest; but in that case the defendant whose land was sold was only indorser. The affidavit required in such case by the statute, to authorize a levy upon the property of the indorser, though made before the levy and delivered to the sheriff, was not filed with the papers in the cause until after the sale. Hutch. Code, 853.

The court, at the instance of the defendant, charged the jury, 1st. That if no affidavit that the principal debtor had not any property in the state, were made and filed among the papers in the cause, before the levy and the sale of the lot, then that the sale was void. 2d. That the defendant, Pritchard, being in possession of the lot, had a right to keep the possession against every person who had not a good and sufficient legal title to it. 3d. Proof that Koher, the defendant in the execution, was in possession previous to the possession of Pritchard, does not constitute such title as would enable the plaintiff claiming under Koher to recover from Pritchard. These instructions involve the controversy.

It has been decided by this court, that mere irregularities on the part of the sheriff in the sale of real estate, will not vitiate the title of a dona fide purchaser, as such sale is not the exercise of a mere naked statutory power. City of Natchez v. Minor, 10 S. & M. 246. Although the statute which requires affidavit to be made and filed among the papers in the cause, before a levy is made on the property of the surety, was not literally, it was substantially complied with. The object is to protect the surety or indorser, and to restrain the sheriff from proceeding against them until he is furnished with proof that the principal has no estate subject to the execution. That object may be as well attained by the delivery of the affidavit to the sheriff, as by filing it with the papers, and we do not think the sale should be set aside, because it was delivered to the sheriff instead of the clerk. The affidavit was made, but the sheriff kept it for his own protection, instead of filing it with the papers, until after the sale. Without undertaking to decide whether the sale would have been void, if no affidavit had been made, it is enough to say that in this instance the law has met with a substantial compliance. If the sale were thus authorized by law, it is not material who became the purchaser.

The second charge, although correct as a general proposition, is yet subject to an exception, which should have been explained to the jury. The plaintiff in ejectment can only recover upon the strength of his own title, as being good against the world, or as being good against the defendant by estoppel. Clark v. Diggs, 6 Iredell, 159.

In England, when an ejectment is brought by a tenant by elegit, and the debtor is himself in possession of the land, the only evidence necessary is an examined copy of the judgment roll, containing the award of the elegit and return of the inquisition. But if the possession be in a third person, the lessor must either show that such third person came into possession under the debtor, and that his right to possession has ceased, or should the party in possession hold adversely to the debtor, be prepared with evidence of the debtor’s title. Adams on Ejectments, 302. This rule has been long followed in this country, and as against the defendant in the execution, the purchaser need not show the title of the defendant. If the debtor acquire an adverse title subsequent to the sale, that is matter'of proof to be made out in the defence. Robinson v. Parker, 3 S. & M. 118; Duncan v. Duncan, 3 Ired. 318; Jackson v. Jones, 9 Cow. 192.

The defendant in this suit introduced the judgment under which he purchased, and the marshal’s deed, thus showing that he came into possession under the debtor. As between these parties, therefore, in the present attitude of the case, the defendant, Pritchard, setting up no title except that of Koher, the lessor of the plaintiff was not required to prove the nature or quality of the debtor’s title.

The third charge falls within the reasoning applicable to the second, and does not call for any further remark.

The judgment is reversed, and new trial granted.  