
    NOVEMBER TERM, 1844.
    John P. Lehr v. John Doe, ex dem. Moses B. Rogers.
    A sale of real estate made under an execution after the day to which it was returnable, passes no title.
    All executions must be made returnable to the next term after they are issued, provided fifteen days intervene betwcefi the date of their issuance and the first day of the term.
    An execution issued more than fifteen days before the first day of the April term, 1841, and made returnable to the October term, 1841, was irregular apd void, and a sale under it in July passed no title.
    Appeal from the Circuit Court of Holmes county.
    This was an action of ejectment brought by John Doe, ex dem. Moses B. Rogers, against John P. Lehr, the tenant in possession. The facts are stated in the opinion of the Court. 1
    
      Wilkinson and Miles, for appellant.
    It is provided by the first section of our statutes on the subject of executions, that they shall be made returnable to the next succeeding term, provided more than fifteen days do not intervene between the teste and the term to which they are made returnable. In this case the plaintiff below purchased under an execution, which was issued more than fifteen days before the April term, and which was made returnable to the October term of the Circuit Court of Holmes county. The plaintiff in error asserts that the sheriff’s deed conferred on the plaintiff below a right, under these circumstances, to the locus in quo ; in other words, that a fi.fa. so issued, is irregu'lar and void, not voidable merely. It is true, there is some discrepancy among the authorities on this subject, or rather but little direct authority upon the point. Tidd (page 937), says, that aji. fa. irregularly issued, is void, or at least erroneous. The Supreme Court of New York, in the great case of Woodcock and Bennet, when drawing the nice line of distinction between void and erroneous process, says, “ To make the process void, the irregularity must be either in the process itself, or in the mode of issuing it,” 1 Cow. 739, echoing and endorsing the opinion of the Supreme Court of Connecticut in the case of Fuddington v. Peck, 2 Conn. R. 207, (first series). In short, there are many dicta to the same effect. “ The-sale in this case is good, provided the writ was duly issued,” says the Supreme Court of the United States, 4 Wheat. 507. See also 4 Yerger, 22 ; 3 Bay, 1 ; 2 Salk. 700. Speaking from reason, rather than authority, we think this either is, or ought to be, the law. A clerk has no right to issue process in one way, when a statute has declared it shall be issued only in a different way ; to issué it, for example, without the seal of the Court, or the signature of the Judge, or the date of the teste, or with a prohibited date, which is the case at law. Executions issued in such a form would seem to us unauthorized and void acts, and that no sheriff could sell under such a. writ, any more 'than he can justify an arrest under a ca. sa. which had been made after the return day had passed. 3 Bay, p. 1. We therefore think that the Court, after pursuing and exhausting the investigation which we have but begun, will set aside the verdict in this cause, and award a new venire.
    
    
      Lansdale, for appellee.
    By agreement of the parties, there is but one point in this cause, and the agreement is in these words, t@ wit: “ It is agreed that the evidence upon all the other pojnts was sufficient to entitle the plaintiff’s lessor to recover, and that if there is error to the prejudice of the defendant, it consists only in the admissibility of the execution and deed above referred to.” Therefore, no other portion of the testimony in the cause was taken down, or made a part of the bill of exceptions, than that calculated to show whether or not the Court erred upon the point complained of.
    The appellee brought an action of ejectment in the Court below, against the appellant, and after having produced the evidence previously necessary, offered in evidence the execution with the sheriff’s return thereon, under which ;the land in controversy was'sold and purchased, which is in the usual form, and which will be found on' pages 9, 10 and 11 ; and also the sheriff’s deed, under which he claimed, which is on pages 7 and 8 ; with the deed and execution, the plaintiff’s lessor introduced Samuel H. Baughn, the deputy Circuit Court clerk, Armstead G. Otey, the deputy sheriff by whom the levy was made, and also the sheriff who made the sale. By Baughn and Otey it is proved that the execution was issued on the 13th day of March, 1841 ; that it was regularly tested and made returnable tó the succeeding April Court, which met on the third Monday of the month ; that it came to the hands of the sheriff on the 1st day of April, and was by him on the same day duly and properly levied ; and that after the levy and sale, upon returning the execution to the clerk’s office, under a mistaken notion that twenty days had not elapsed between the test and return of the execution, he did in the clerk’s office erase the return then in the body of the execution, and insert October, — or that the deputy clerk did so at his request, without examination ; and that all this took place not only after the return day of said execution, but after the sale under it ; and the testimony of the sheriff proves that neither the plaintiffs in execution, nor the defendant in error,'had anything to do with directing the particular levy or sale, and that the sale and purchase was open and fair, and for the very best price that could be had ; and that the land was sold on the 19th day of July, 1841. See pages 5, 6, and 6, — there are two pages numbered (6).
    It cannot be pretended that the improper acts of the deputy sheriff in altering the return day of'the execution, after the levy and sale, can vitiate the acts previously performed, which were at the time, to all intents and purposes, regular, and thereby defeat the purchaser’s right, who was in no shape a party to the alteration so made.
    It is presumed that such a position will not be seriously taken, and if taken, that it will not be sustained by the Court; and the only other point which it is probable will be made is, that the sheriff had no right to sell without a venditioni exponas, and this position has been so often overruled, that it is not deemed necessary to argue it at length. It is well settled, that even if a sheriff goes out of office before he has sold, if it be levied whilst in office, he may proceed to sell. 2 Gaines, Rep. 234; 23 Bibb’s Rep. 344, and 4 Bibb 90, are referred to. An affirmance of the judgment of the Court below is respectfully insisted upon.
   Mr. Justice Thacher

delivered the opinion of the Court.

Upon the trial of this cause in the Court below-, an execution and sheriff’s deed, upon a sale of land under said execution, by virtue whereof the plaintiff’s lessor claimed his title, were admitted in evidence, and the legality of this evidence, by agreement, constitutes the point of controversy here.

In connexion with the said execution and sheriff’s deed, the testimony of a deputy clerk of the Circuit Court from which the execution issued, appears in the record, to the effect that the execution relied upon by the plaintiff’s lessor as introductory of the sheriff’s deed, was issued upon the 15th day of March, 1841, and made returnable to the April term, 1841, of the Circuit Court of Holmes county, which took place upon the third Monday of said month of April. This included a period of more than fifteen days between the date of the writ of execution and its return. It also appeared, that after the said April term, the execution was brought into the said clerk’s office by Otey, a deputy sheriff, and that the witness, at the suggestion of the said Otey, altered the term of its return from April to October, 1841. In the same connexion, the testimony of the said Otey, shows in the record a corroboration of the above testimony, and explanatory of the reasons for advising the above described alteration, and that the same was made without the advice or knowledge of the plaintiffs in the execution, or the plaintiff’s lessor in this case. The sale was made, under this execution, on the 19th day of July, 1841, and the levy upon the 15th day of April previous.

Without going into the inquiry whether it was competent for the plaintiff below to show by parol evidence that the return in the body of the execution was unlawfully altered, and the effect of such alteration, if we view the execution as in law returnable to the April term, it is manifest that a sale under it in July, 1841, was irregular, and conferred no title. The sheriff having been bound by law to make a return of the writ to the April term, it had, at this time, discharged its office. He acted then without legal process, and consequently without authority, since the latter expired with the writ. The authority for a sale of the real estate could only have been obtained by a writ of venditioni exponas, returnable to the October term. H. & H. 633, s. 15. The sale of real estate under such circumstances being regulated by statute, all the substantial requisites of the statute must be complied with to effect a transfer of title. On the other hand, viewing the execution as made returnable to the October term, it was then irregular, and therefore a nullity and void, because it was issued directly in opposition to the statute, which imperatively requires all executions to be made returnable to the first day of the term next succeeding the date of their issuance, when at least fifteen days intervene between that time and the day of their return. H. & H. 617, s. 1.

The judgment of the Court below is therefore reversed, and a venire de novo awarded.  