
    Tipton vs Grubbs.
    Ejectment.
    Appeal from the Montgomery Circuit.
    
      Case 40.
    
      Sales of Land. Executions.
    
    
      October 15.
    The cuse stated.
    A sale of land under execution orreplevin bond, is not illegal or void, though the execution may be for a greater sum than was really due on the judgment. The sheriff’s duty was to make a sale sufficient to sgtisfy the execution unless the bond and execution had been quashed.
   Chief Justice Robertson

delivered the Opinion of the Court.

This is an action of ejectment for land conveyed by a sheriff to the lessor, as purchaser thereof under vs.fi.fa. which had been issued against the defendant who refused to surrender the possession, and still resists an eviction, on the ground, as urged by his counsel, that more land was sold than was necessary for satisfying the amount actually due to the judgment creditor, and that, therefore, the sale was illegal and void. We concur with the Circuit Court in overruling that defence and rendering a judgment of eviction.

The f. fa. under which the sale was made, was issued on a replevin bond, operating as a judgment; and even if, as assumed and may be admitted, the amount of the bond exceeded the aggregate sum which was due and collectable on the original judgment, nevertheless, as the execution was issued for no more than the amount specified in the bond, the official sale of as much land as was necessary for satisfying the execution, was not even illegal or irregular much less void. It was the officer’s duty to make the amount of the execution, unless the bond and execution had been quashed or corrected.

Nor can we decide that the land was sold for more than the sum due' and collectable on the face of the exeeution. The counsel on each side has made an elaborate exhibition of arithmetical calculation, resulting in a difference of less than two dollars—one of them showing that the amount made by the sale was less than that which was collectable by about fortij cents, and the other exhibiting an excess of about one dollar eighty■ cents. The process is tedious and minute, and a fractional error in the result may not be easily avoided. Our revision rather confirms the calculation made by the appellee’s counsel. But having no great confidence in the certainty of our arithmetic, we are not sure we are right to a cent; we are sure, however, that we cannot decide that the sheriff sold a foot more of the land than the execution required. Waiving, therefore, every other consideration which might be suggested on this point, we are of the opinion that the sheriff’s sale and conveyance do not appear to have been void.

Peters for plaintiff; Apperson for defendant.

If, as suggested in argument, there was any injurious surprise or fraud in the sale,' not proved or relied on in the trial of this action, a court of equity might afford the proper relief.

Judgment affirmed.  