
    Mitchell, lessee, vs. Lipe.
    Where a tract of land was, by the request of the defendant who resided thereon, levied on by the sheriff, and no ,notice, of the time and place of sale was given to him by the sheriff, as required by the act of 1799, ch. 41: It was held, that the request to levy by defendant, was not a waiver of his right to the notice of the time and place of sale, and that the sale of the land was void.
    Where the purchaser of a tract of land sold at execution sale, sold the saihe whilst the defendant in the execution was in possession: Held, that the possession of the defendant was not adverse to the sheriff’s vendee, and, therefore, the sale made by the purchaser, was not void for champerty.
    
    The defendant, whose land is sold under an execution, and who con¡ tinues in possession thereafter, is quasi tenant at will of the purchaser, until from and after an actual disseizin or disclaimer on his part is proved.
    Where one in the possession of land, offers to purchase the title, or does any act equivalent to a recognition of the landlord’s title, he cannot dispute the title, or claim to have holden the land adversely.
    Where the sheriff made a return upon an execution in these words, “Sold the within tract of land, subject to a deed of trust to .Richard Mitchell,” &c.: Held, that the return of the sheriff was no evidence of the existence of the deed of trust, as against the purchaser at the execution sale.
    It is not necessary that the purchaser at sheriff’s sale, in deraigning his title, should show the sheriff’s return; it is sufficient for him to show the sheriff’s deed, and that he had authority to sell.
    At the November sessions, 1819, a judgment for one hundred and thirty-six dollars and fifty cents, was rendered against the defendant Lipe, upon which execution issued, and was levied on seventy acres of land, on which Lipe then lived, at the request of Lipe. tin pursuance of said levy, the land was sold on the 18th of November, 1820, to Richard Mitchell. A deed was executed by the sheriff to Mitchell for said tract of land, on the 24th of May, 1823. At May sessions, 1821, another judgment was '•endered against Cipe for one hundred and.eighteen dollars an¿| ninety cents; an execution issued thereon, was levied on a tract of land adjoining the former, on which defendant Lipe formerly lived, and was sold to Richard Mitchell, the 25th November, 1822; .the sheriff making the following return: “Sold the within described tract of land, subject to a deed of trust to Richard Mitchell, at the court-house door in Rogersville, on the 25th of November, 1822, to Richard Mitchell, for the sum of two hundred dollars, he being the highest bidder.” The sheriff, also, conveyed this tract to Richard Mitchell, 24th of May, 1823. On the first of July, 1825, Richard Mitchell conveyed both tracts to his sons, Stokely D. and Wilie B. Mitchell, the lessors of the plaintiff. On the 13th September, 1828, this suit was brought against Lipe and Jesse Beeler, to recover possession of said two tracts of land.
    The defendant Lipe, actually resided on the first tract of land levied on at the time of the levy and sale, and has continued to reside thereon ever since. The sheriff did not give him notice of the levy, and time and place of sale, as is required by the act of 1799, ch. 14, sec. 1; but the levy was made on that tract at his request. The circuit court charged the jury, that if they found from the proof, that Lipe, the defendant in the execution, requested the sheriff to levy on the tract of land just sold, it must be a waiver of his right to the notice required to be given under the act of 1799, ch. 41, sec. 1; and that a sale made under such circumstances would not be void as against the purchaser. The court also charged the jury, that the return of the sheriff, on the second execution, that the land was “sold, subject to a deed of trust to Richard Mitchell, was conclusive evidence of the existence of such deed of trust; and that at the time of the sale, the legal title to the land was not in Lipe, but in Richard Mitchell, and that, consequently, the purchaser at said sale took nothing by his purchase and deed. The jury found for the lessees of the plaintiff, as to the first tract, and against them as to the second. The lessors of the plain- ° . . A tiff moved for a new trial, and the motion being overruled, appealed, in the nature of a writ of error, to this .court.
    
      R. J. M. Kinney, for plaintiffs in error.
    
      J. A. M’Kinney, for defendant in error.
   Green, J.

delivered the opinion of the court.

It is insisted, that the request of Lipe to levy upon the tract of land first sold was a waiver of the notice required to be given by the act of 1799, ch. 41, sec. 1. We cannot concur with the counsel for the plaintiffs in this view of the case. The important facts of which the act intended the party to be notified, were, the time and place of the sale. The knowledge on part of the defendant, of the levy as made by his request, could not in the least tend to give him information of the other facts, or amount to a waiver of the right to be notified of them. The notice not having been given, nor a waiver thereof having been made, the sale of that tract is void, and the sheriff’s deed communicated no title to Mitchell, the purchaser. Trott and M’Broom vs. Gordon and M’Gavoch, 1 Yerg. Rep. 469; Rogers vs. Jennings, 3 Yerg. 308. As to this tract, therefore, from the facts in this record, the lessors of the plaintiff are not entitled to recover.

As to the last tract that was sold, there is no evidence in the record, that the defendant Lipe was in possession thereof,at the time of the levy and sale, or at the date of the deed from Richard Mitchell to the lessors of the plaintiff; so that the questions of champerty, and notice to the tenant, do not arise. The only witness who speaks of the possession by Lipe, expressly confines himself to the tract upon which Lipe then lived, aviz: the upper one of said tracts, ” The only proof in relation to the possession of the last tract sold, is that introduced by the lessors of the plaintiff, that Beeler and Lipe were in possession when the suit was brought.

But if the defendant Lipe was in possession of this tract at the timo of the sale from Richard Mitchell to the lessors of the plaintiff, still the deed would not be effected by the champerty act of 1821, ch. 66, sec. 1. Tcmake the deed void for champerty, there must have been an adverse holding by Lipe. This could not be, for his title having been transferred by the sheriff’s sale and deed, to Richard Mitchell, his possession afterwards was consistent with Mitchell’s title, under which he held as quasi tenant at will. In this character he would be deemed t.o continue the possession, until an actual disseizin or disclaimer on his part. Such is the doctrine of all the books. 1 John. C. 153; 1 John. Rep. 453; C. R. 188; 3 Mass. Rep. 128; 1 Peter’s Rep. 570; 1 Chitty’s Prac. 257. In addition to this, he offered to redeem the land, which was equivalent to an offer to purchase the title of Mitchell, and which recognized the title of Mitchell, so that he cannot now dispute it, or set up that he has held adversely to it. Tillinghast’s Adam. Ejec. 57, note 2, and authorities, Jackson ex Dem. of Viely vs. Cuerden, 2 John. Cas. 353.

The only remaining question is, whether the statement of the sheriff, in his return on the execution, is to be taken as conclusive of the fact, that at the time of the sale, the legal title to the land was not in Lipe, but in Mitchell, and that, consequently, Mitchell took nothing by the purchase deed. This opinion was given in charge, by the circuit court to the jury, and a verdict and judgment were rendered against the lessors of the plaintiff.

We feel the importance of adhering to former adjudications, and the mischiefs which result from a fluctuation of opinion upon any question; yet questions will sometimes occur, when a point may be adjudicated without the benefit of all the. authorities which could shed light upon it;, and when a re-consideration of it is highly proper. Upon the question now under consideration, we believe the former opinion is erroneous, In the case of Jackson vs. Sternberg, 1 John. Cas. 185, it is decided, that the sheriff return is not essential to the title of the purchaser. Lansing, C. J., in delivering the opinion of the court observes, “But the sheriff’s return, in my opinion, was not essential to the title of the purchaser. That title was not crested by, nor dependent on the return, but was derived from the previous sale made by the sheriff, by virtue of Iiis vrit. It was sufficient for the purchaser, that the sheriff lad competent authority, and sold, and executed a deed to him.” In the case of Wheaton vs. Sexton, 4 Cond. Rep. 520; 4 Wheat. 503. Mr. Justice Johnson, in delivering the opinion of the court, observes, “On this point, ire court can only express its surprise, that any doubt could be entertained.” The purchaser depends upon the judgment, the levy, and the' deed. “All other questions are between the parties to the judgment, and the marshall, Whether the marshall 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.” '

Adopdng, as we do, the principles of these cases, we are of opinion, that the sheriff’s return is not necessary to a derangement of the title of the lessors of the plaintiff, and is no proof of the existence of the deed of trust therein mentioned. If the effect contended for were given to the return of the sheriff, it would enable him, months after a good title had been acquired by purchase and deed, to defeat if altogether, merely by making a false endorsement on the execution. But upon principle, the sale and the sheriff’s deed are sufficient evidence of the title; and if the-purchaser can show, that the sheriff has authority to sell, it is enough, and he need not look farther. We are of opinion, therefore, that the lessors of the plaintiff, upon H,he facts in the record, are entitled to recover the second tract of laird, and, therefore, order that the judgment be reversed, and that the cause be remanded to_ the circuit court of Hawlans comity, for another trial to be had , . J therein.

Peck, J.

dissenting.

I have heard nothing that convinces me of the propriety of changing the opinion delivered by Judge Whyte and myself, at a former term of this court, upon the effect of the return of the sheriff. That the record, of which the execution forms a part, must be produced and looked to in making out the chain of title, has never beer, questioned in Tennessee, and that the return upon the .execution made by the officer, both of levy and sale, when replaced in the office from whence it issued, is thenceforward a record, is equally clear and unquestionable, The return thus of record is an evidence of facts done in pais. It is more certain than frail memory, .and hence the wisdom of the law in preserving, in this form, the evidence of levy and sale. If it be true that the deed, reciting what has been done, can alone be looked to, md that such recitals must be taken as true, without the aid bf the return, then it will follow that our land titles will'be suspended upon a frail tenure. A sale may be made, the execution concealed, not lost, and other lands thaii those levied on or sold,' conveyed. Subsequent sheriffs make deeds, long after sales made by a previous sheriff. Years after the transaction has passed, the title will be made to depend upon matters of mere memory, or upon the fabricated stories of executions,, levies and sales, where none existed. The very question may be the description of the land, and the conformity in the deed with the return upon the execution. The description of the land in the deed, is a .recital of what the execution shows. How a recital shall become higher evidence than the thing, recited, is a- position in law not easily to be seen. A party may, by a recital, estop himself from denying the existence of the matter recited. The sheriff would be estopped by his recital; but the rule does not apply to others. The recitals in the sheriff’s deed must be sustained by the production of the thing recited; the return, when produced against the debtor, where land has been sold, and this, when produced, must be taken altogether. Whether the sheriff has returned the truth or a falsehood, is a matter not before me, it is enough that he shows in his return that he sold an equity only, and the plaintiffs having shown that fact to the court and jury, when he produced the execution, is forbid to deny it. A purchaser at sheriff’s sale is not bound to pay the money until he has seen the reten endorsed upon the execution. It is the evidence of his right, and he is entitled to have it entered before he pays. Mitchell, then, must have known what title he was getting; he cannot garble the return upon the trial-, and say that part shall be received as evidence, and part shall not; the whole must be taken.

The return has always been resorted to in this country, in looking to the title, as those conversant- with the practice know. It was one of the questions in the case of Vance vs. M’Nairy, and then it became important to see if the description of the land was the same in the deed with that of the return. It became a turning point in the cause, was debated with ability by counsel, and gravely considered of by the court. See the case 3 Yerg. Rep. 177, 178. (Judge Green’s opinion.)

Every state in the Union has her own policy in "the mode of transferring real estate. It has been the business of the legislature, and of the courts, to guard the transfer, by officer’s sales, with caution. _If the reten need not be looked to, in sales for taxes, where a part only may be bid for, and in all the other cases given in the statutes of the country, but that the recital in the deed' alone should do, then will the rights to our freeholds and lands become the most precarious of all rights, depending alone upon the integrity of sheriffs. The authorities referred to in Johnston and Condensed Reports have aPP^'ca^on t0 the point here preseated, and if they had application, still the course of decision in this State hag keen adverse to them.

3 udgment reversed.  