
    William J. Minor v. The President and Selectmen of Natchez.
    Where the statute required the sheriff to advertise real estate levied on under execution for thirty days, by posting up notices in at least five public places in the county, one of which shall be at the court-house door, and that statute was adopted by the United States circuit court, and the marshal of that court, having levied on and sold real estate, returned that “ he had given legal notice of the sale in a public newspaper ; ” held, that the departure of the marshal from the mode of advertising pointed out by the statute would not vitiate the title of the purchaser at the sale.
    
    Irregularities of a sheriff, in conducting a sale of real or personal estate under execution, will not vitiate the title of a bona fide purchaser at such sale.*
    A sale by a sheriff of real estate is not the exercise of a naked statutory power ' uncoupled with an interest; but is the exercise of a power conferred by the judgment and execution.*
    The recitals in the sheriff’s return and deed are prima facie evidence of their truth. 
    
    Whether the presumption of correctness, arising from the recitals in a sheriff’s deed, may be rebutted by proof of their falsity. Query ? †
    In error, from the Adams circuit court.
    John Doe, on the demise of William J. Minor, brought an action of ejectment in the circuit court of Adams county to the May term, 1842, thereof. The notice was served on the president and selectmen of the city of Natchez, who appeared, entered into the consent rule, and plead not guilty.
    •A jury was empanelled, and the lessor of the plaintiff offered to read to the jury the record of a judgment in the United States circuit court for the southern district of Mississippi, at the suit of Reuben M. Strother, a.citizen of the state of Missouri, who sued for the use of S. H. Leverick, and ten citizens of the state of Louisiana, against the said president and selectmen of the city of Natchez; by which it appeared that the plaintiff therein, Strother, had, on the 22d day of November, 1839, recovered a judgment against the said president and selectmen in that court, for the sum of $6507 99, the debt in the declaration mentioned, and $371 for damages; that an execution of fieri facias issued on this judgment, directed to the marshal of the said southern district of Mississippi, who returned the same with the following indorsement, viz.:
    “ Levied this execution upon the property described in the advertisement hereto annexed, on the 26th February, 1840, and before the day of sale, received a supersedeas, which prevented the sale. W. M. Gwin, Marshal.
    
    By Aug. Lynch, Deputy.”
    The property described in the levy was the city-hall and the market-house. On the 25th day of November, 1841, a writ of venditioni exponas issued from the court, upon which the marshal made the following return: “The piece of ground described in the body of the within execution, I offered for sale at public auction, at the court-house door of the county of Adams, in the city of Natchez, between the hours of eleven and one o’clock, this day, January 17, 1842; legal notice of which sale I had given in the public newspaper called the ‘ Courier,’ published in the city of Natchez, county of Adams, state of Mississippi. William J. Minor bid $8,500, whose bid being the highest and best bid I was offered for said property, I declare him the purchaser. Anderson Miller, Marshal.
    
    By his deputy, W. H. Miller.”
    Upon this execution was also indorsed, by the marshal, a receipt in full of the purchase-money from William J. Minor. The defendant below objected to the introduction before the jury of the marshal’s return on the venditioni exponas. The objection was sustained, and the return excluded, and exceptions were taken.
    The lessor of the plaintiff then offered to read the marshal’s deed for the lands purchased at the marshal’s sale; in which deed the marshal recites the judgment, the levy, and states, “ That the said marshal, having given thirty days previous notice that the above described property would be sold at public auction, by virtue of said writ of venditioni exponas, on the seventeenth day of January, between the hours of eleven o’clock, A. M., and five o’clock, P. M. of said day, at the courthouse of Adams county, did, at the time and place, offer said premises for sale, at public auction; and the said William J. Minor then and there appeared and bid for the premises the sum of $8,500, which said sum was more than any other person offered or bid for the same. Whereupon the said property was struck off to the said William J. Minor, being the highest and best bidder therefor.” The deed was in other respects an ordinary sheriff’s deed.
    The defendant objected to the introduction of the deed; the objection was sustained,'and the plaintiff suffered a judgment to be rendered in favor of the defendant, and prosecuted this writ of error.
    The following rule was read on the trial of the case in this court:
    “ United States of America, ( Circuit Court U. S.
    
    Southern District of Miss, ¿ November Term,, 1841.
    
      Copy of Rule adopted by said Court on 8th Dec. 1841.
    “ Ordered by the court, that hereafter it shall be the duty of the marshal of this district to advertise all sales of property to be made under any process, decree, or order of this court, by putting up notice of such sale in at least three public places in the county where such sale is to be made, one of which shall be at the court-house, in case of real estate, thirty days, and sales of personal property, ten days before said sale. But where the defendant or defendants shall request the marshal to give any such notice of sale by publication, as heretofore, in some public newspaper, the marshal shall give such notice and no other, by such publication, provided the request be made before notice of such sale has been posted up as above directed. In case of publication the^cost shall be taxed in the bill of costs.
    
      “ I, William H. Brown, clerk of said court, do hereby certify that the foregoing is a true copy of the rule adopted by said .court, at the November term, in the year of our Lord one thousand eight hundred and forty-one, as the same now remains of record in my office. In testimony whereof, I have hereunto ■set my hand, and affixed the seal of said court, at Jackson, this 10th day of December, A. D. 1842. W. H. Brown, Clerk.
    
    By George W. Miller, Deputy Clerk.”
    
    
      The following are the errors assigned.
    1st. The court erred in sustaining the defendants’ objection to the admission of the marshal’s return as evidence on the trial, as appears by second bill of exceptions.
    3d. The court erred in sustaining the defendants’ objection to the admission of the deed from A. Miller to W. J. Minor as evidence to the jury, as stated in the second bill of exceptions, and other errors.
    
      Montgomery and Boyd, for plaintiff in error.
    The marshal’s return was certainly evidence of the levy and sale, although of itself it is no evidence of title without a deed. And even if the return was defective, in showing that in fact, no notice of the sale had been given, or that the notice which was given, was not such as the law required, that did n.ot render the sale void ; and the judgment, (fee. was therefore evidence for the plaintiff. 5 How. 253.
    In general the purchaser is not bound or affected by the irregular acts of the officer or plaintiff, in which he did not participate. 1 Bibb, 155; 2 lb. 202, 518, 401 ; 3 lb. 21,6 ; 3 J, J. Marsh. 439; 6 Mon. 110; 4 How. R. 267.
    Where it was apparent, from the evidence, that the sheriff, if he had advertised the property for sale at all, had not done it ip such manner as the statute required, on a .court dqy, or if he did, he must have given more than twenty or less than ten days notice of the time of the sale,, and in either case the directions of the law are not fulfilled ; and of which the .purchaser must ’have been cognizant; yet the sheriff and purchaser may have had no corrupt motive, and if they did not intend a fraud upon the debtor, the sale was valid. For this -is the criterion. The purchaser may be apprized that the officer has not performed his duty properly, yet if he purchase without turpitude of motive, the sale will be valid. 6 Mon. 110.
    A fair purchaser under a sheriff’s s.ale, without knowledge of •any improper conduct on the part of the officer, acquires a valid title to the property purchased, and the remedy of the party injured is by action at law for damages against the .sheriff. 4 Rand. 427.
    
      The title of the purchaser under a Ji. fa. is derived from the sale and the sheriff’s deed, and is not affected by an incorrect return. 1 Johns. Cases, 153,155 ; 1 Johns. R. 454; Col. & Caines Ca. 350; 1 Har. & Gill, 174; 6 Gill & Johns. 503.
    A sale under execution is not effected by an irregularity in th ejudgment or execution, or on the ground that the levy was not made until after the return day. 13 Johns. R. 97.
    A sale of land is valid although the sheriff fail to advertise in the gazette, agreeably to statute. If any damage results, the defendant has his remedy against the sheriff. 1 Nott and McCord, 11, 408.
    A purchaser at sheriff’s sale is not affected by any irregularity in the sale, 1 Hill R. 239, 3S0.
    From these authorities it would appear the irregularity of the marshal in advertising the sale of the real estate levied on, would not affect the title of the purchaser; but even if the advertisement of the sale in a peculiar manner were essential to the validity of the sale, it would not be a valid objection to reading the marshal’s return, because the proper advertisement may be proved by other evidence than the marshal’s return, and proof of an advertisement different from that stated in the return, would not contradict the return, but would be cumulative merely.
    But even if the return were properly ruled out, there appears no reason for ruling out the deed. It is in proper form, recites the judgment, execution, sale, and payment of the sum bid for the land. The same authorities before recited, show that the sale would be valid although there was no advertisement, and no reason can be offered against the deed stronger than those offered against reading the return.
    
      George Winchester, for defendant in error.
    By the marshal’s return it appeared to the court that the course of the statute had not been pursued in giving the notices of sale required, and the sale and conveyance being therefore illegal and void, the court below ruled out the plaintiff’s evidénce of title.
    
      Was the return upon the execution and deed of the marshal properly ruled out! In other words, -does the return of the marshal show an illegal and void sale !
    The return as to the notice is as follows, to wit: “ Legal notice of which sale, I had given in the public newspaper called the Courier, published in the city of Natchez, county of Adams.”
    The execution was issued 25th November, 1841, and the sale took place 17th January, 1842.
    By an act of the state, of Mississippi, approved January 25th, 1841, the 1st section declares, “ That all laws and parts of laws requiring sheriffs or other officers to advertise in any public newspaper the sale of any property taken or surrendered in virtue of any writ of execution, attachment, or tax claim, be and the same are hereby repealed; and in lieu thereof such officers shall give notice of such sale, in cases of real estate, thirty days, and of personal property ten days, by posting up such notice in at least five public places in the county, one of which shall be the court-house door. Sec. 3d. That the provisions of this act shall not extend to, or prohibit the publication of any such sale in any newspaper, when the defendant may request such publication; and provided further, that such request is made at the time of levying the execution. Sec. 4th. That this act shall be in force from and after its passage.”
    This law was substantially adopted as a rule of the circuit court, at November term, 1841. See certified copy of said rule. But this rule of the court was wholly unnecessary.
    By the facts (as to the giving the notice) returned by the sheriff, it appears he gave the notices in a public newspaper. This the law prohibited, and required the notices to be given by posting up at five public places in the county, &c.
    It is true these requirements of the law in giving notice might be dispensed with, and the notices given in a public newspaper, at the request of the defendant, if made at the time of the levy, but no such request was made, no such facts are returned.
    The court must take the facts to be as returned by the marshal, and cannot add to or take from, or presume the state of facts to be otherwise than as returned. The plaintiff, if he had offered to do so, would perhaps have had a right to prove a regular notice, notwithstanding the return. But he made no such offer. That the sale and conveyance under it were void, upon the notice given by the marshal, as shown by his return, is clear by all the authorities.
    In the case of Thatcher, et al. v. Powell, 6 Wheat. 119, the court say, “ That no individual or public officer can sell and convey a good title to the land of another, unless authorized so to do by express law, is one of those self-evident propositions, to which the mind assents without hesitation, and that the person invested with such a power, must pursue with precision the course prescribed by law, or his act is invalid,” &e.
    This opinion of the supreme court of the United States was not hastily formed, without a due consideration of the entire law. On the contrary, the principles and rules of the common law, upon which it was founded, had been most fully investigated and deliberately considered and settled by that most intellectual and enlightened tribunal in two former cases. See 4 Cranch, 403, or 2 Gond. R. 151, and 4 Wheat. 77, or Cond. R. 395.
    In the latter case, Williams, et al. v. Peyton's Lessee, the principles of the decision in 6 Wheaton are explained by the court.
    The court below instructed the jury, “ That the purchaser, under the sale of lands for the non-payment of the direct tax, to make out title, must show that the collector had advertised the land, and performed the other requisites of the law of congress, in that case provided, otherwise he made out no title.”
    The defendant then requested the court to charge the jury, “ That the deed, and other evidences produced by them, and herein mentioned, was prima facie evidence, that the said land had been advertised, and the other requisites of the law, in that respect, had been complied with,” which charge the court below refused.
    The supreme court say, “ It is a naked power, not coupled with an interest; and in all such cases the law requires that every prerequisite to the exercise of that power must precede its exercise; that the agent must pursue the power, or his act will not be sustained by it.”
    This general proposition has not been contested; but the plaintiffs in error contend, that a deed executed by a public officer, is prima facie evidence, that every act which ought to precede that deed, had preceded it. That this conveyance is good unless the party contesting it can show that the officer failed to perform his duty.
    It is a general principle, that the party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends on an act “ in pais," the party claiming under that deed is as much bound to prove the performance of the act, as he would be bound to prove any matter of record on which its validity might depend. It forms a part of his title; it is a link in the chain which is essential to its continuity, and which it is incumbent on him to preserve. These facts should be examined by him before he becomes a purchaser, and the evidence should be preserved as a necessary muniment of title. If this be true in the general, is there anything which will render the principle inapplicable to the case of lands sold for the non-payment of taxes ? In the act of congress, there is no declaration, that these conveyances shall be deemed prima facie evidence of the validity of the sale.
    If the duties of the officer be examined, they will be found to be susceptible of complete proof on the part of the officer, and consequently on the part of the parchaser, who ought to pre serve the evidencé of them at least for a reasonable time. Their chief object is, to give full notice to the. proprietor, and furnish him with every facility for the voluntary payment of the tax, before resort should be had to coercive means.
    In some instances the proprietor would find it extremely difficult to prove that the officer had neglected to give him the notice required by law.
    By our statute the defendant has a right to tender personal property before the sale in discharge of his land.
    
      These decisions establish the rules, that when any officer has by statute a mere naked power, without any interest in the land, to sell and convey, that such officer must give the notice required by the statute, and pursue the power by observing all the requisites, or the sale will be invalid; and that it will not be presumed from the deed that the officer has done his duty by giving the requisite notice; but that when such requirements are acts in pais, they are as necessary to be proved as links in the chain of title, as any matter of record.
    These rules apply to sheriffs, collectors, administrators, executors, or guardians selling lands under the statutes of the state, all of whom have but a naked power, not coupled with an interest.
    It is easy for the purchaser to prove by the sheriff or marshal, that notices were posted up at four different public places in the county for thirty days before the sale. But it would be impossible for the defendant to prove they were not so posted up. It would not be competent for him to prove it by the marshal, because he would not be allowed to give evidence to invalidate his own deed to the purchaser, and that he had not performed his duty as an officer. How, then, could he possibly prove the notices had not been given as required by law? If he brought in twenty witnesses to say they had not seen the notices, it would not prove they were not posted up as required by law.
    The case in Yerger, where it is decided that it will be presumed from the deed that the officer has done his duty in complying with the requisites of the statute, is in direct opposition to these cases, and is founded on a case in New York, in 1 Johnson’s Cases. But in New York there is an express provision of the statute, declaring that the sale shall not be invalid for want of notice. Which is best authority, as evidence of the common law, the decision in Yerger, founded upon the New York case, where a statute has changed the common law rule, that a naked power to sell not coupled with an interest must be strictly pursued, and that the compliance must be proved by the plaintiff as a link in his title, when it consists of acts in pais, as much so as when it consists of acts of record; or the decisions of the supreme court of the United States?
    In Jackson v. Roberts, 11 Wend. 434, the senator says : “If the deed is to be evidence only of part of the necessary facts, is it of those which show the regularity of the sheriff’s proceedings, or of those which disclose his authority to sell ? Of the former, it may be that the deed is evidence, but this rests not upon the principles upon which the supreme court have based their decisions in this case, but upon the statute which declares that the want of this regularity shall not affect the validity of the sale. 1 Rev. Laws of 1813, 505, § 13. Were it not for this statute, a mere deviation from the form in which a sale is to be conducted by the sheriff would probably render the sale void. 1 Cow. 629; 4 Crancb, 403; 4 Wheat. 77. It must be borne in mind that this is a naked power in the sheriff, not coupled with an interest; and the law, in such cases, requires that every prerequisite to the exercise of that power must precede its exercise. Jackson v. Shepherd, 7 Cow. 90. It is so in regard to a collect- or’s deed for taxes. If he must recite anything in his deed, it must be those prerequisites which give him authority to sell; yet it has been held, and I think very properly, that the recitals in such a deed are not evidence of the existence of such prerequisites.” Again, at page 435, of the same case, 11 Wendell, the same judge says: “A sale by a sheriff is analogous to a sale by a collector of taxes, and I have not discovered any reason why the same principles should not govern them both.” And see what he says further to the same point, on the next page.
    In this case, and in 2d and 7th Cowen, referred to, the rules laid down by the supreme court are fully recognized, and in conformity therewith it is decided that a mere recital of a compliance with the prerequisites in the sheriff’s deed is not evidence that the course of the statute has been pursued.
    In Massachusetts these doctrines are recognized by numerous authorities, and in sales on valuation to judgment creditors by extent, it is there settled that the return of the officer is a necessary part of the title, and must show a strict compliance with the requirements of the statute, and that the return must set out the facts, in order that the court may judge whether the sale is legal and according to the course of the statute. Bott v. Burnell, 11 Mass. 165, 166; 18 Pick. 495; Porter v. Millet, 9 Mass. 101; 8 Conn. 536 ; Bottv. Burnell, 9 Mass. 96 ; 15 Pick. 28; Estabrook v. Hapgood, 10 Mass. 315; 17 Ibid. 299; 13 Ibid. 483; 7 Pick. 551; 14 Mass. 28; 2 Ibid. 154; Lancaster v. Pope, 1 Mass. 88; 17 Pick. 440; Eddy v. Knapp, 2 Mass. 154; Amory v. Williams, 14 Ibid. 20. So, too, on sales on execution at public auction of equities of redemption by the sheriff. Whitaker v. Sumner, 7 Pick. 556; Wellington v. Gale, 13 Mass. 483; Davis v. Maynard, 9 Mass. 236; and bn sales by distress, 2 Mass. 154, execution sale under G. 2, s. 6; Purington v. Loring, 7 Mass. 392; Chamberlain v. Doty, 18 Pick. 495. And the court there decide that the facts must be returned, and the return cannot be altered, added to, varied, or contradicted by parol. Bott v. Burnell, 11 Mass. 165, 166; Lancaster v. Pope, 1 Ibid. 88; Eddy v. Knapp, 2 Ibid. 153; Eddy v. Knapp, 2 Ibid. 118, 154; Porter v. Mallet, 9 Ibid. 99 ; Davis v. Maynard, Ibid. 236 ; Bott v. Burnell, 9 Ibid. 96; Estabrook v. Hapgood, 10 Ibid. 315, 319; Bean v. Parker, 17 Ibid. 591; Lawrence v. Pond, Ibid. 433.
    In 3 Howard’s Reports, 39, this court say, upon a return, “Executed by leaving a copy at the boarding place, October 7th, 1836 : ” “ The sheriff, in the present case, has not returned simply ‘ executed,’ but states the manner of execution. The question then is, whether the manner of executing the process is such an one as the statute sustains. We think not.” And see 1 Mass. 88; 2 Ibid. 154, above cited, and page 118. In 7 Greenleaf’s Maine Reports, 376, (case of Grosvenor v. Little,) the court say, “ When an equity of redemption is seized on execution, the officer is required to give public notice of the time and place of sale, by posting up notifications thereof in two or more public places, in the town or plantation where the mortgaged estate is situated. The sale operates a statute transfer of the interest, and it is essential to the title of the purchaser that the requisites of the statute should be complied with. The officer posted up a notification in but one place in Poland. The omission to do it in two places, we are satisfied is fatal to the title of the purchaser.” See, too, Eastman v. Curtis, 4 Ter. R. 616. In Cable v. Martin fy Bell, 1 How. 561, and in Worton v. Howard, 2 S. & M. 529, even in a sale of personal property, where the power to sell is coupled with an interest, this court say that an administrator’s sale of a slave at private sale is void under our statute, which only authorizes a sale at public auction. If a sheriff may sell without giving notice, why may he not make a private sale of land levied on 1
    In Tirginia, too, the same rules are recognized in Christy v. Minor, 4 Munf. 431, and Nalle v. Fenwick, 4 Rand. 585. See, too, in Connecticut, Burton v. Pond, 5 Day, 162; Coe v. Stow, 3 Conn. R. (2d series,) 536; Wattles v. Hyde, 9 Conn. R. 10 -14; Lockwood v. Sturievant, 6 Ibid. 373; Watson v. Water, 10 Ibid. 77; Metcalf v. Gillett, 5 Ibid. 405 ; 3 Ibid. 406.
    On examination it will be found that most, if not all, the cases in the states where it has been decided, either that it is unnecessary to the validity of a purchaser’s title to land that the sheriff shall have pursued the directions of the statute in giving notice, or that such notice may be presumed in favor of the officer, or that the recitals in his deed are evidence of notice, that they refer to a case in 1 Johnson’s Cases, in New York, or to Wheaton v. Sexton, 4 Wheat.
    In New York, by statute, the failure to give notice shall not affect the purchaser’s title; but for this we have shown, by the most respectable New York authorities, that it would be requisite to the validity of the sale, and must be proved like all other links in the chain.
    In the case of Wheaton v. Sexton, the only question decided by the court was, that a sale under a levy made after the return-day of the execution, did not invalidate the sale. And although Judge Johnson says, “ The purchaser depends on the judgment, the levy and the deed, all other questions are between the parties to the judgment and the marshal.” This is said in reference to the question before the court, as is shown by the very next sentence in his opinion, to wit: Whether the marshal sells before or after the return; whether he makes a correct return, or any return at all to the writ is immaterial to the purchaser, provided the writ was duly issued and the levy made before the return.” He does not mean to say, nor does he say, whether any notice is given or not, or whether the sale is by public auction or by private sale, or whether there is any evidence of these facts or not, is immaterial to the purchaser, provided the writ was duly issued, and the levy made before the return. All he meant, and all he said was, that the validity of the sale did not depend on the return. If no return were made, or an incorrect return, the purchaser might prove by parol that the sale was at public auction, and that notices were given pursuant to the statute.
    The case of Williams, et al. v. Peyton’s Lessee, reported in the same volume, had been delivered at the same term of the court, with Judge Johnson on the bench, it is presumed nemine dissentients.
    
    In that case the court said, “ in all cases of a naked power, not coupled with an interest, the law requires that every prerequisite to the exercise of that power, must precede its exercise ; that the agent must pursue the power, or his act will not be sustained by it.”
    
      In all cases. The sheriff is one case, in which the agent of the law has a naked power, not coupled with an interest; and surely Judge Johnson, and much more the court, ought not to be understood at the same term to directly contradict this opinion in Wheaton v. Sexton, when no such question was before them.
    In Coke on Littleton, section 434, 2586, note, Coke says : “ Regularly, it is true, that when a man doth less than the commandment or authority committed to him, there (the commandment or authority not being pursued,) the act is void.”
    And in section 66, 52, b: “ If a man be disseised of black acre and white acre, and a warrant of attorney is made to enter into both, and make livery, there, if the attorney enter into black acre only, and makes livery secundum formam cartai, there the livery of seisin is void, because he doth less than his warrant. F.or the estate of the disseisor in white acre cannot be divested without an entry. But there is a diversity between an authority coupled with an interest and a bare authority. For example, a custom, &c. But he that hath a bare authority, as he that hath a warrant of attorney, must pursue his authority, (as hath been said,) and if he do less, it is void.” .
    Such is the principle of the common law, as to powers given by individuals; and the same principle applies equally to powers derived from a statute or court. Attorney General v. Griffith, 13 Yes. 586. 11 Wend. 425. 4 Wheat. 77.
    
    This is also the doctrine of the civil law in Louisiana, or substantially so. Delogny v. Smith, 3 Mill. La. R. 418, 421. 4 Mart. La. R. 513. 11 lb. 606, 711.
    In the case now before the court, it is clear the sheriff, or marshal, derives all his authority to levy on lands, and sell and convey title, from the statutes of the state; that no such authority exists at common law, and that he has a mere naked authority to sell and convey.
    That such a power must be strictly pursued, that the prerequisites to the execution of the power must be complied with, and the course pointed out by the statute be followed, or the sale and deed under it are void, is evidenced to be the rule of the law by such weighty and learned authorities, both ancient and modern, as can hardly be overthrown by a few hastily considered scattering authorities to the contrary, to be found in some of the books.
    And that compliance with such prerequisites, whether they be acts in pais or acts by matter of record, must be affirmatively shown by the purchaser, in making out his title, and are not to be presumed in favor of a public officer, or from loose general recitals in his deed or return, but that the facts in pais must be proved as much as facts of record, is equally well established. The existence of the judgment and execution, acts of record, cannot be proved by a recital in the deed, nor that the sale was at public auction, and not a private sale, which must be shown by the return ; neither can the facts of giving public notice, as required by statute, acts in pais, equally as essential to be proved, as links in the title, in order to support its continuity. These facts should be shown by the return, or at least proved by other evidence than recital in the deed. Jackson v. Shepard, 7 Cow. 90. 11 Wend. 433, cases there cited. 5 Serg. & Rawle, 332. 4 Wheat. 77.
    
    By the sheriff’s return it is shown he did not pursue the course pointed out by the statute ; he has returned the facts, and those facts do not correspond with the requirements of the statute.
    No question arises here, whether notwithstanding the return, the purchaser might not have introduced proof that the proper notices were given. No such proof was offered, and no such question was raised in the court below; but notwithstanding his return showed, upon the facts therein stated, that the sale was void, plaintiff’s counsel insisted upon his right to offer the deed, upon the ground that the purchaser’s title was unaffected by the want of notice. This was the sole question raised in the court below, and is the only question presented by the record here. Was it error in the court below, upon the facts stated in the return, to rule out the execution and deed, because upon the return the sale appeared to be void ? The marshal was in court, and might have been examined by plaintiff, to prove the notices had been regular, if such were the fact, though not by the defendant, to destroy his (the sheriff’s) own deed, by proving them irregular. Plaintiff did not choose to examine him, because he would have proved that the notice was given only in the public newspaper, without the request of defendants, and only ten days, instead of thirty, before the sale.
    But the only question here is, was it error to rule out the evidences of plaintiff’s title, upon the facts returned by the marshal, when no other evidence of a legal notice was offered, and when the facts, as returned, clearly showed that the sale and deed under it were void 1 Clearly not.
    Plaintiff first offered the judgment, the execution, and return, as evidence of an authority to sell, and a legal sale under the authority. It was objected to, because the return showed an illegal and void sale, and the objection sustained. Plaintiff then offered the deed, which was also objected to, because the sale being shown by the return to be invalid, the deed under it was also void.
    The sheriff had returned “the manner” of his giving the “ legal notice ; ” and in the language of this court, in 3 How. 39, “ the question then is, whether the manner of giving the notice is such an one as the statute sustains?”
    In the case of Drake v. Collins, 5 How. 253, the court remark, that the case was not argued at bar, or by brief, and a brief was furnished on one side only. The court based its decision, that the law will presume an officer did his duty, upon a general return “ that he had given notice according to law.” Upon the case in 3 Yerg. 308, in a sale of personal property, where the power to sell is coupled with an interest, and where, therefore, the requirement of the statute to give notice, is merely directory, and whether given or not does not affect the validity of the sale, the decision is, doubtless,, correct. It is so decided in 2 Bibb, 401, upon a sale of negroes, referred to by plaintiff’s counsel.
    But the rule is different, where the notice required must be given to make the sale a valid one, and where the fact of notice is a necessary link in the chain of the purchaser’s title, which is the case of a sale of lands under the statute. Either the court in 3 Yerger are wrong, or the decisions in 4 Wheaton, 7 Cowen, 4 Randolph, 4 Munford, and all the cases referred to in Massachusetts, Yermont, New Hampshire, and Connecticut, are not evidence of the correct rule of law. Davis v. Maynard, 9 Mass. 242. 1 lb. 88. 2 lb. 154, 118.
    But in the case now before the court, it is unnecessary to decide whether notice may be proved by a general return, or by recitals in the deed, upon the legal presumption, that officers have done their duty, in complying with the directions of the law.
    Take the return of the marshal and the recitals in the deed together, and what do they show? Do they show a compliance with the requirements of the law, in giving notice ? Did the marshal, in selling under his bare power, pursue the course of the statute strictly, or, in the language of Coke, did he do less than his authority required ?
    He has made a special return of what he did, and in his deed he recites, that he levied a writ of venditioni exponas on the land, and “ having given thirty days previous notice, that the above described property would be sold at public auction.” Upon the recitals in the deed, his deed was clearly void, because it shows a total want of authority ; for the sheriff has no authority, under a venditioni exponas, to levy on lands. True, this recital is shown to be false by the venditioni exponas itself. But “ falsum in uno,falsum in toto.” What confidence is to be put in the recitals of a deed, when one material recital, the very authority itself, is false?
    Then as to the notice; did the court below err in concluding, upon all the facts returned on the execution and recited in the deed, that the notice required by the statute was not the notice which, according to the evidence contained in the marshal’s return and deed, had been given ?
    The cases in 3 How. 39, and 5 How. 662, are an answer. Upon the faets specially returned, and recited on the writ and in the deed, the marshal gave “ legal notice in the public newspaper, thirty days previous ” to the sale. According to the facts here specially returned, is this legal notiee, taking his return and his recitals to be true ?
    If the court below, upon the facts before them, as shown by the return and the recitals on the deed, did not err in ruling out the deed and the return, as evidence of title in the plaintiff, then the judgment of the court below must be.affirmed, even if he erred in not allowing plaintiff’s challenge to the juror, as the plaintiff was not injured by the error.
    All the cases cited by plaintiff’s counsel, of sales of personal property without notice, or of sales of real property under erroneous judgments, or irregular and amendable process, are wholly inapplicable to this case.
    If a party suffers his property to be sold under irregular process, or an erroneous judgment, before he applies to set aside the process, or have the judgment reversed, it is his own fault. But these questions have nothing to do with the question, whether the sheriff must pursue his statutory authority under an execution, by giving notice as the law requires. If the judgment or execution be void, he has no authority.
    It is asked, how is the purchaser to know whether the marshal was requested to publish in the public newspaper 1 The answer is, by inquiring of the marshal, who is bound to inform him truly, and if he answers falsely, it will be a fraudulent sale. He can prove the facts, too, by the marshal.
    But, in the language of Chief Justice Marshall, how is the proprietor to prove the notice was not given 1 In this very case the only contest is, whether the plaintiff shall recover upon the sufficiency of the return and the recitals of the deed, as evidence of notice, although it is true, and admitted by the marshal out of doors, that he gave but ten days’ notice, and was not requested by defendant to give notice in the newspaper. If sent back, plaintiff must recover; because not required to prove a compliance with the statute, and defendant cannot prove a non-compliance by any one but the marshal, and he is inadmissible to invalidate his title. But if the decision of the court below is sustained, and a new ejectment brought, plaintiff can prove a compliance with the statute by the marshal, if he did comply. But no second ejectment will be brought.
    But this is an argument of convenience, or policy, and is no answer to the law, that a sheriff, having a naked power, must pursue it. It is said, too, defendant has remedy, by moving to quash the execution. But if the sale was valid before, quashing the execution would not invalidate. .Question is, without notice pursuant to the statute, was the sale valid 1 It is not a question of authority, but a question of pursuing the authority in the execution of the authority.
    
      
       By Sharkey, C. J.
    
    
      
       By Clayton, J.
    
   Mr. Chief Justice Sharkey

delivered the following opinion.

The plaintiff in error brought ejectment for a lot of land in the city of Natchez, and to the opinion of the court in ruling out his title papers, he excepted.

He claimed title to the lot in controversy, as the purchaser at a sale made by the marshal of the southern district of Mississippi, and introduced the judgment and a fieri facias thereon, which was levied on the lot, but the sale was suspended by supersedeas. He also offered in evidence a venditioni exponas, under which the lot was sold, and the marshal’s return thereon, but the return was objected to, and ruled out, on the ground that it showed the advertisement of the sale to have been illegal. In the return the marshal certifies that he offered the lot at public sale at the door of the court-house of Adams county, on the 17th of January, 1842, “legal notice of which sale he had given in the public newspaper called the Courier, published in the city of Natchez,” and that William J. Minor was the highest and best bidder, and declared to be the purchaser. The plaintiff next offered to read the deed from the marshal, but this also was objected to and ruled out.

The validity of the sale made in the manner stated in the return, is the important question in the cause. If that was valid, of course the deed was improperly ruled out, but if it was invalid, the purchaser acquired no title, and both the return and the deed were properly rejected. The supposed defect in the sale, consists in the illegality of the advertisement made by the marshal, he having advertised in a newspaper, when the law points out a different mode. That this objection may be understood, it is necessary to refer to the statutory provisions on the subject of sheriff’s sales, which contain the law also in reference to the marshal. By the 17th section of the law in relation to executions, H. & H. Dig. 633, it is provided that no sheriff shall sell property by virtue of an execution in a private manner, but such sale shall be at the court-house door, on the first and third Mondays in every month, and shall not commence before eleven o’clock, A. M., nor continue later than four o’clock, P. M. “ And the sheriff or other officer shall give, in the case of personal property, at least ten days public notice; and in the case of lands and tenements, at least thirty days public notice of such sale, by advertisement at the door of the court-house of his county, and at two other public places within the same; one of which shall be in the vicinage or neighborhood at which the property was taken; and also in one of the public gazettes, if there be one published in his county.” This act was repealed in 1841, by an act which is entitled “ an act to prevent unnecessary charges against debtors,” which provides that sales shall be advertised by posting up notices in at least five public places in the county, one of which shall be at the court-house door. By the third section of this repealing act it is declared that its provisions shall not extend to cases in which the defendant may request that the notice shall be given in a newspaper, if such request be made at the time of the levy. By a rule of the United States court, this law was adopted before the sale in this instance, as applicable to execution process emanating from that court.

As the law then required the marshal to advertise by posting up notices in five public places, it is clear, from his return, that he has committed an irregularity by departing from the law, unless he acted on the request of the defendant. It was said in argument, and very truly, that to advertise in a newspaper is not necessarily a violation of the law, it is the proper mode when the defendant requests that the sale should be so advertised ; and on this account the propriety of the decision in ruling out the return, might well be questioned. The plaintiff might have been prepared to support the return by the proper evidence of a request made by the defendant; but we pass that by, and proceed to the more important question.

Does this irregularity of the marshal vitiate his sale % It is not pretended that there Avas any defect in the judgment, or in the execution. The object of the law in requiring that sales shall be advertised is plain enough. It was designed to prevent a sacrifice of property. The sheriff is the officer of the court, who acts under an official responsibility to the court, as well as to the parties. The execution is his warrant, and he is bound to obey its mandate. When he does so, it is the policy of the law that purchasers at his sales should be protected. The law does not impose it as a duty on purchasers to look into the regularity of the judgments and executions under Avhich they purchase. Hence if a sheriff sell under a judgment which is afterwards reversed, the purchaser is not affected. The owner of the property is restored to the proceeds, but not to the property. 2 Tidd’s Prac. 1033, 1186. And so if he sell under an execution which is irregular. Ib. 1032. If the law will not vacate a sale made under an irregular judgment, it would seem to follow as a, legitimate consequeuce, that it will not avoid a sale for an irregularity of the sheriff. The policy of sustaining the sale, must be as strong in the one case as in the other. Indeed there is a stronger reason why the irregularity of the sheriff should be disregarded; the injured party has his remedy against the sheriff; whereas he is without remedy in case the judgment be irregular. The sheriff, being the accredited officer of the law, is presumed to act in obedience to law, and the community has a right to rest upon the presumption that he acts correctly, and the law sustains rights acquired under that presumption. He derives his authority to sell, from the judgment and execution, not from the advertisement. The purchaser is not put upon inquiry as to the regularity of the judgment and execution. In the official character of the sheriff, and his general power derived from that character, purchasers have a guaranty that they will be protected in their title. If this law is to be so construed as to defeat a sale for the irregularity of the advertisement, the object of the law requiring public notice to be given, is defeated. Property will never command its value, when the purchaser’s title is to depend upon the regularity of the notices of sale. No one would buy, unless satisfied that proper notice had been given, a fact not likely to be known by many, and perhaps by none, of the bystanders at a sheriff’s sale. Titles to land must be matters of record, but if the notices given by the sheriff are to constitute a link in the chain of title, it will no doubt often happen that this link must be supplied by parol testimony. I suppose if the sheriff is not authorized to sell without the proper notices of sale, that it will in all cases be incumbent on his vendee to show that he has complied with the law in this respect. If giving the proper number of notices at proper places, constitute a condition precedent, the performance must be proved. It is on this principle that the purchaser at sheriff’s sale must produce the judgment and execution. How is the purchaser to protect himself? The law does not require any evidence of these notices to be perpetuated. The notices áre matters in pais, constituting no part of the record. If the sheriff should happen to return that he had given proper notice, this would not mend the matter. The counsel for the defendants in error has insisted that the recitals in the deed are not evidence, and has cited authorities which sustain that position. The sheriff’s return would not he conclusive evidence, even if he was bound to certify in his return that he had given the requisite notices, but he is not. The purchaser then, in many cases at least, would be driven to a bill to perpetuate testimony, or run the risk of losing his land for a defect in his title. The effect of vacating the sale is to make titles depend upon parol proof Suppose the sheriff should return that he had advertised at five public places, it would be competent for the defendant to prove that they were not public places, and thus vacate the sale, for it is as important that the notices should be given at public places, as that they should be given at all. With all these obstacles in view, does it not necessarily follow, that the property of the unfortunate debtor must, in many instances, fail to bring a sum which bears any proportion to its true value ? The notice maybe given in a newspaper if the defendant should so request. Such request then becomes a requisite to a complete title, but how is the purchaser to be prepared to prove it? It is not necessarily to be made in writing, and if so made, it does not become record evidence. These consequences are serious, and must show that to hold a sale void because of an irregularity in the officer, without an express' authority for so deciding, would come in conflict with that policy in the law which protects bona fide purchasers at sheriffs’ sales.

With the utmost desire to arrive at a conclusion which will accord with the principles of the law, we have sought for all the lights to be derived from adjudged cases, which to some extent will be reviewed. In the case of Doe ex dem. Vancampen v. Snyder, 3 How. 66, the counsel, who now insists that this sale is void, succeeded in maintaining that a sale of land made under an execution which was afterwards quashed, was valid. The authorities there introduced, held that a sale under execution after the judgment had been paid was valid, which was also true in the case referred to in 3 Howard. One of the cases there cited, even held that a sale under a void execution was valid. The case of Cooper’s Lessee v. Galbraith, 3 Wash. C. C. Rep. 546, was cited, and on that case the court seems mainly to have relied. It was there decided that in ejectment by the purchaser at sheriff’s sale, against the defendant in execution, the plaintiff need only produce the judgment, the execution, aud the sheriff’s deed, and that the defendant will not be permitted to controvert such title; that the sheriff acts as the agent of the defendant, fully empowered to sell, and the defendant receives the purchase-money by having it applied in discharge of his debt; on which the law raises a contract in like manner as if the conveyance had been made by the defendant. This doctrine operates powerfully against the defendants in error, who were also defendants in the execution under which the plaintiff purchased. In Saunders v. Caldwell, 1 Cow. 622, it seems to be admitted as the settled law, that a bona fide purchaser at sheriff’s sale, acquires a good title as against the defendant in execution, unless it is not only voidable, but absolutely void.

The case of Hamilton v. Shrewsbury, 4 Rand. 427, decides that a bona fide purchaser at sheriff’s sale is not affected by the irregularities or improper conduct of the sheriff. The same doctrine has been recognized in Massachusetts, notwithstanding the reliance on the decisions of the supreme court of that state to establish the reverse of this doctrine. In the case of Titcomb v. Marine and Fire Insurance Company, 8 Mass. R. 326, the court held the law to be that delays or irregularities in levying the execution, or in the proceedings of the officer, would not defeat the title of a purchaser of personal property, although the officer might be liable.

The case of Wheaton v. Sexton, 4 Wheat. 503, is a strong one to the same effect. Land was sold after the return day of the execution, which was in fact never returned, .and the purchaser brought ejectment against the defendant in execution. The court say, the purchaser depends upon the judgment, the levy, and the deed. All other questions are between the parties to the judgment and the marshal.”

In the case of Jackson ex dem. Ten Eyck v. Walker, 4 Wend. 462, an objection was taken to the sheriff’s return because it did not describe the land. This was held unnecessary, and Chief Justice Savage remarked, that he must describe it in his advertisement ; but even if he failed to comply with the directions of the statute in that respect, the title of the purchaser would not be affected by his neglect. This rule seems generally to prevail in the decisions in New York, not as was contended, in virtue of any statutory provision, but on common law principles.

This question has been frequently raised in other states, and has been decided directly in favor of the validity of a sale made after irregular notice. In the case of Lawrence v. Speed, 2 Bibb, 401, an objection was taken to the validity of a sale of personal property, on the ground that the sheriff had not advertised the sale according to the statute. The court said the sheriff had not acted in conformity with law, and quoted a part of the act which required that she sheriff should advertise the sale “ at the court-house door, and at the meeting-house door, and most public places within the county;” but, said the court, the act is silent as to the consequences of a failure on the part of the sheriff to comply with the requisitions, and it was decided that although sueh omission might render the sheriff liable, yet the sale was valid; and the same doctrine was afterwards recognized by the same court. 3 J. J. Marshal, 439. Our statute is also silent as to the consequences, and the effect must therefore rest upon general principles.

In Turner v. McCrea, 1 Nott & McCord, 11, the supreme court of South Carolina decided, that the failure of the sheriff to advertise land, did not affect the title of a bona fide purchaser.

In the case of Den ex dem. Osborne v. Woodson, Hay. N. C. Rep. 24, on the trial of an action of ejectment, an objection was taken that the land had been sold by the sheriff under execution, without the forty days notice which the statute required, but it was held that his vendee was not affected by the omission. And in the case of Doe ex dem. Jones v. Fulgham, 3 Murphy, 364, the same question was again raised before the same court, in the trial of an action of ejectment. The sheriff had sold the land under execution without giving the forty days notice, as required by the statute, and it was again held that this irregularity in the officer did not affect the title of a bona fide vendee. In these decisions the policy and object of the law requiring notice to be given, were fully considered, as were also the evils which would result from holding the title of the sheriff’s vendee to be, for that reason, defective. These decisions, being directly on the question now before us, must be entitled to great weight, and they are not in conflict with the authorities introduced by defendant’s counsel, as will be seen from an examination of the cases.

A decision which has been pressed upon us as a direct authority, is the case of Thatcher v. Powell, 6 Wheat. 119. That case was decided under a law differing essentially in its provisions from our statute, and on a principle which does not arise in this case. The sale was made by the sheriff, as tax collector, for the non-payment of taxes by a non-resident. The sheriff’s deed was held to pass no title, for want of jurisdiction in the court. By a law of Tennessee, if non-residents failed to render a list of taxable property, to the justice authorized to receive it, then the sheriff was authorized to levy a distress on personal property; and if there was no personal property, the sheriff was required to report to the county court, whose duty it was to direct the clerk to make out a certificate of the lands liable for the payment of taxes, which was to be published, and if no person paid the taxes within thirty days, then the act directed the court to enter up judgment for the amount of taxes due, on which execution was to issue, under which the sheriff was authorized to sell the land. The defendants in ejectment held under such a deed. The principal objection urged against the validity of this deed, by the supreme court, was that the record of. judgment did not show that the sheriff had reported to the county court that there were no goods and chattels. It was said the act gave no jurisdiction to the court over the land of a delinquent for taxes, until the sheriff had reported no goods and chattels, which the court said was an important fact, and ought to appear on the record. It was also said the record was defective, in not showing that the publications had been made which were required by the act. What was the principle on which this decision was based 1 It was distinctly stated by Chief Justice Marshall, in this language: “In summary proceedings, where a court exercises an extraordinary power under a special statute prescribing its course, we think that course ought to be exactly observed; and those facts, especially, which give jurisdiction, ought to appear, in order to show that its proceedings are coram judice. Without this act of assembly, the order for sale would have been totally void. This act gives the power only on a report to be made by the sheriff. This report gives the court jurisdiction, and without it the court is as powerless, as though the act had never passed.” Thus it will be seen, that this case turned not on the power of the sheriff, or the validity of his sale, but on a question of the jurisdiction of the county court, which was a court of special and limited jurisdiction, with regard to which the rule is universal, that the record must show everything which was necessary to give the court jurisdiction.

The case of Stead’s Executors v. Course, 4 Cranch, 403, and Williams v. Peyton’s Lessee, 4 Wheat. 77, were both cases which arose under sales made for the non-payment of taxes. In such cases, the decisions uniformly hold, that the purchaser must show that the collector complied strictly with all the prerequisites of the law, and the reason is, that it is a summary exercise of a special power, expressly delegated by statutes, and the reasoning which applies to courts of special jurisdiction, applies with still greater force to the exercise of this statutory power by a tax collector. His power can only be exercised on certain contingencies, and these contingencies must have happened, and the conditions on which he can act must have been performed, before his act can be valid. His power does not attach, until every prerequisite of the law has been complied with. No presumption arises in favor of the legality of his acts. But it is not so with the sheriff. He derives his power to sell from the judgment of a court of general jurisdiction, and its execution process. The case of Jackson v. Shepard, 7 Cow. 88, was also a question which arose out of a tax collector’s deed, which holds to the same strict rule. So strict, indeed, are the decisions in reference to sales made by tax collectors, that the supreme court of New Hampshire held, that a tax collector’s deed was prima facie void.

We are also referred to the decisions of the supreme court of Massachusetts, none of which are directly to the point. Some of the decisions refer to a title acquired by extent, in which objections were taken to the sufficiency of the sheriff’s return. When a levy is made on land, the sheriff causes it to be appraised, and the creditor takes it at the appraised value. The execution and appraisement are returned to the clerk’s office, and the return operates to pass title. Hence the necessity for a degree of strictness, which does not prevail when the sheriff passes title by deed. But this process seems to be regulated by express statutory provisions, which, of themselves, require that degree of strictness which the courts exact. In the case off Wellington v. Gale, 13 Mass. R. 483, the court held that the tenant, who was a disseizor, had a right to insist that all measures made necessary by law, to vest a title in the sheriff’s vendee, should be proved to have been pursued. It was said that the title of the demandant was wholly under the statute, and he must show a substantial compliance with the requisites of the statute. This was but an equity of redemption, the sale of which seems to be regulated and limited by statute, one requisite of which is, that the debtor shall be personally notified. The principal ground of objection in the case, seems to have been to the officer’s return, because it did not conform to the requisites of the law. The case of Williams v. Amory, 14 Mass. R. 20, was also one in which the validity of the return was questioned, on the ground of a defect in the sheriff’s certificate as to the appraisement. In these cases of extending the land, it passes to the creditor, who is a party to the proceeding, and not to a third person, who is a bona fide purchaser. They, therefore, bear no analogy to an absolute sale by a sheriff, to the highest bidder. On a similar point to that in the case last cited, was the decision, referred to in 15 Pickering, made. We have already seen, that in an absolute sale of chattels by the sheriff under execution, the supreme court of Massachusetts holds to the necessity of protecting the title of the purchaser ; and the transfer of real estate, by execution, must therefore be considered as depending exclusively on the peculiarity of the statutory provisions in relation to that subject.

Several decisions of the supreme court of Tennessee are-entitled to notice, inasmuch as a strict compliance with the directions of the statute, in regard to sheriffs’ sales, has been held necessary. The statute seems to require that written notice of the time and place of sale shall be served upon the defendant, twenty days beforehand. In the case of Trott & Brown v. Me Gavock & Gordon, 1 Yerg. 469, it was held that a sale was void for want of such notice. But the court particularly noticed and quoted a provision in the act, which seems to furnish an ample reason for the decision; that every sale of land made contrary to the provisions of the act should be null and void to all intents and purposes. In the case of Nois’s Lessee v. Purchapile, 5 Yerg. 215, it was held that if the defendant had all the information that a written notice would have given him, and was personally present at the sale, it was sufficient. The question was again before that court in the case of Loyd v. Anglin, 7 Yerg. 428. It seems that personal notice is only required when the defendant is in possession of the land, but when he is not in actual possession, notice in the gazette and at the court-house are necessary. The sheriff did not advertise the land at the court-house, nor regularly in the gazette, as required, and the sale was held to be void. But the court again quoted at length the section, which declared sales made contrary to the provisions thereof absolutely void, and the decision was evidently based upon that provision. These decisions, therefore, strong as they may seem, are not directly in point, in consequence of that peculiarity in the statute of Tennessee, which is not found in ours. There are therefore no decisions which can be said to come in conflict with those cited, which, under a directory statute, hold that the sale is valid, notwithstanding the irregularity. The 17th section of the act referred to begins by declaring, that no sheriff or other officer shall sell any property by virtue of an execution in a private manner, but that he shall sell at public sale at the court-house at particular times. By the latter part of the section it is declared that he shall give notice, in case of personal property, ten days, and in case of real estate, thirty days. It does not declare that he shall not sell without such notice ; nor does it declare the sale void. It can only therefore be regarded as directory as to the latter provision, and any violation of it would no doubt make the officer liable in damages, but cannot affect a bona fide purchaser. What would be the effect of violating the first provision, which prohibits the sheriff from selling in a private manner, we are not now called on to say. The decisions which have been cited from the Louisiana Reports seem to have been made in accordance with the principles of the civil law, and cannot therefore be regarded as authority in a court which is governed by the common law.

It was insisted, in argument, and indeed much pressed upon us, that the sheriff sells land by virtue of a naked statute power, uncoupled with an interest, and therefore the statute must be strictly pursued, or no title passes. If the premises were true, the conclusion would follow. But we cannot yield to the truth of the proposition, that a sheriff sells land under an execution by a naked statutory power. It is founded in an entire misconception of the law. What is a naked statutory power? I suppose it to be a power derived from the statute only. Is it true that the sheriff derives his power from the statute alone ? Have the judgment and execution no agency in the matter ? If it be a naked statute power, they must be useless. The truth is, the sheriff derives his power, not from the statute, but from the judgment and execution. The statute makes real and personal property alike liable to execution. The judgment binds both from the time of its rendition, and the sheriff, being the officer appointed by law to execute the judgment of the court, enforces the liability by sale. It is not controverted that an irregularity in advertising personal property would not vitiate the sale, because that is sold under the common law. The sheriff has a property in it, which entitles him to sell. It is true the sheriff has a qualified property for the purpose of making the money to satisfy the execution, but this is the extent of his qualified property, and he sells, not by virtue of any right in the property, but by virtue of the judgment and execution; hence if the judgment and execution be void, his sale passes no title. But is the common law so much more potent than the statute, that it will hold a sale of chattels to be good, but a sale of land made precisely under the same circumstances to be void 1 The truth is, there is no difference. Both are sold under the statute law, and must be governed by the same rule. A tax collector sells by a naked power, because there is no judgment. The matter begins and ends with him ; hence the statute must be strictly pursued. It is a special power, and like a limited jurisdiction; everything must be shown to make the sale valid. But the sheriff sells under a court of general jurisdiction, and the purchaser depends upon the judgment, the execution, and the deed. The judgment is evidence of the liability of the property, and the execution is evidence of the sheriff’s general authority. The deed and the return were both improperly ruled out, and the judgment must therefore be reversed, and the cause remanded.

Mr. Justice Thachek, having been counsel, gave no opinion.

Mr. Justice Clayton

delivered the^pinidn. of-thcccrnTt.

I concur in the conclusion of the Chief Justice in this case. I think, however, that the act of 1841, of our legislature, in regard to sales under execution, was never legally adopted by the circuit court of the United States for this district, and that it must consequently be thrown out of view in this case. To render a state law valid by adoption in the courts of the United States, it must be adopted as it exists, without any material alteration. The supreme, court of the United States recently expressed, the rule in these terms: The act of congress authorizes the court to adopt a change in the process made by a state law, but not to adopt it only in part, or alter it in any respect.” McCraken v. Hayward, 2 How. S. C. Rep. 615. The act of our legislature requires the advertisement of sale to be made at five public places, in the county; the rule of court at three. This amounts to new legislation, and is clearly unauthorized. The rule has no force, and the case must be governed by the law existing before the act of 1841 was passed.

The marshal stated in his return, “that he had given legal notice of the sale in a public newspaper called the Courier, published in the city of Natchez,” and in his deed, that he had given thirty days’ previous notice of the sale. This made out, in my estimation, at least a prima facie case for the plaintiff' under the law as it then existed, and authorized the reading of the deed. If the defendant had then offered proof to rebut this presumption, and to show that legal notice was not in fact given, I am not now prepared to say that such evidence should be excluded. 1 Yerg. 469. I desire to reserve the expression of an opinion upon that point, until a case shall arise which may make it necessary.

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