
    Richard Pickett vs. John Doe, ex dem. the President, Directors, and Company of the Planters Bank of the State of Mississippi.
    It seems, where a bill of exceptions refers to certain instruments of writing, as being marked with certain letters of the alphabet, but the writings themselves are not incorporated in the bill of exceptions, the court will not notice them, even though similar instruments are'inserted in the record.
    An acknowledgment of a deed that is to the effect of the form prescribed by the statute is sufficient.
    Where, in an acknowledgment of a deed from u sheriff, taken by a probate clerk, the clerk omitted the name of the sheriff from the acknowledgment, which read as follows : “Personally appeared before me, 6. C., clerk of the probate court, in and for said county, whose name is subscribed to the within deed,” pursuing the form in other respects; it was held, a sufficient compliance with the statute.
    Where P. B. had two distinct judgments against R. and H. respectively, and sold and received sheriff’s deeds to the same piece of land under each judgment, by both of which it was bound, R. and H. having each owned at different times, during the lien of each judgment, the tract of land; held, that, even though the sheriff’s deed, under the judgment against R. to P. B. to the land should prove defective, the other would be sufficient, in an action of ejectment, against those claiming under H. to recover the land.
    Where a controversy as to priority of judgment lien arose between P. B. and M., both judgment creditors of N., and the court decided in favor of M., the junior creditor in point of time, on the ground.that P. B. had by his action postponed his priority as to M.: held, that this decision could not affect creditors who were not parties to it, and did not impair or invalidate the lien of P. B., except as it came in conflict with that of M.
    Judgments rendered with a stay of execution, retain, under the law of 1824, their lien, from the date of rendition; and a sale under judgment rendered pending the stay of execution, will not defeat the lien of the first judgment.
    A failure to prove the possession of the defendant, in an action of ejectment, defeats the plaintiff’s right of recovery; yet, where that question is not raised in the court below, it loses much of its force when raised in this court, and but slight evidence of possession will be required.
    Where a defendant, in an action of ejectment, read two leases on the trial, both from persons claiming under the person through whom the plaintiff in the ejectment claimed; held, that in the absence from the record of other proof of possession by the defendant, these leases furnished a sufficiently strong presumption of his possession, to uphold a verdict in favor of the plaintiif in ejectment.
    The following description of the locus in quo in the declaration of the plaintiff in ejectment, held sufficient to uphold a verdict and judgment in his favor, viz.: after describing its vicinity to other lands, it thus proceeds : “ The W i of the N W ¿ ¡ the SE j, the E J of the S W ¿ of section number twenty three and the W J of the NW Jof section number twenty six, township number eleven of range number one west.”
    In error, from the Yazoo circuit court; before the Hon. Morr gan L. Fitch.
    John Doe,, on the demise of the President, Directors, and Company of the Planters Bank of the state of Mississippi, sued Richard Roe, in ejectment, for the following lands, as described in the declaration, viz. : “In the county of Yazoo and state aforesaid, containing about five hundred and twenty acres more or less, described as follows, to wit: the tract on which James C. Hawley formerly resided, lying south of the town of Benton and adjoining the tracts of Jesse S. Brown deceased and William Bizland and others containing about five hundred and twenty acres a portion of which is known as the W £ of the N W | the S E £ the E \ of the S W ‡ of section number twenty three and the W £ of the N W ¿ of section number twenty six township number- eleven of range number one . west.”
    Notice was served on Richard Pickett, who appeared, entered into the consent rule, and plead not guilty.
    At the May term, 1843, of the court, there was a trial and verdict for the plaintiffs, in the ejectment, and a writ of habere facias possessionem awarded, for the land described in the declaration.
    At the trial various exceptions were taken, and all included in one bill of exceptions, embodying the testimony in the case. The various deeds and records, however, mentioned in the bill of exceptions, as read to the jury, were not set out therein, but were referred to as marked A and B and E and X, &c.; but after the bill of exceptions there were inserted in the record various papers, corresponding in description and character with those referred to in. the bill of exceptions, and to which, respectively, the clerk had prefixed these and similar memoranda: “ Copy of deed referred' to in the foregoing bill of exceptions, marked A.” “ Copy of deed marked B, referred to in the foregoing bill of exceptions,” &c. &c.
    In the statement of the facts, these deeds and records will be noticed as if they were properly before the court. ■
    The lessors of the plaintiff first read a deed from A. G. Harrison, the sheriff of Yazoo county, conveying the property described in the declaration, to them; the same having been sold, as the property of Edward L. Ratcliff, under a judgment in favor of P. B. Pope & Co., rendered at the February special term, 1838, of the Yazoo circuit court. In this deed, the description of the half and quarter sections was written out in full, instead of being abbreviated, as in the declaration.
    In the record, immediately beneath the deed, which was signed “ A. G. Harrison, sheriff,” and was duly sealed, was the following acknowledgment:
    
      “ The State of Mississippi, ? Yazoo County. )
    
    ' “Personally appeared before me, George Crockett, clerk of the probate court, in and for said county, whose name is subscribed to the within deed, as such, who acknowledged that he ■ signed, sealed, and delivered the same, as his act and- deed, on the day and year therein mentioned, and for the purposes therein contained. Witness my hand and seal of office, this 3d day of August, 1841.
    [Seal.] “ George Crockett, Clerk-.”
    
    The defendant objected to this deed, for the insufficiency of the acknowledgment, but the objection was overruled.
    The lessors of the plaintiff then read a deed from the same sheriff to them, to the same land, described as in the last deed; the deed having been made by virtue of a sale under execution, on a judgment in favor of • the lessors of the plaintiff, against James C. Hawley, rendered on the 25th day of November, A. D. 1S36, in the same court. They then read the records of these two judgments, and the executions under which the property was sold and bought by them. The land levied on by the execution against'Ratcliff, was not the same conveyed by the sheriff’s deed. The sections and range were different. It is not deemed necessary to set out the variance farther. It was admitted by the lessors of the plaintiff that the judgment' in their favor, against James C. Hawley, was the same judgment, whose lien was adjudicated upon by the high court of errors and appeals, in the case of J. J. Michie y. The Planter's Bank, reported in 4 How. R. 130.
    The lessors of the plaintiff further proved, that Hawley had been in possession of the land in controversy in the years 1836, 1837, and 1838; that John M’Morrough entered part of the land, and on the 24th of September, 1832, made a bond for title to it, to Edward L. Ratcliff; and here the lessors of the plaintiff closed their testimony.
    The bill of exceptions then recites that the “ defendant then read a title bond from the said James C. Hawley to George R. Carradine, dated February 21, 1837, containing the land described in plaintiff’s declaration; and also a deed of the same land from the said George R. Carradine and wife, dated 13th of April, 1838, to William Ferriday, for the use of Shipp, Ferriday & Co., and also a lease from Ferriday to defendant, for the year 1842, of said lands. The defendant then read in evidence to the jury the record of a judgment obtained in Holmes circuit court, April 24th, 1838, wherein James Biles, who sued for the use of Thacker W. Winter, was plaintiff, and Edward Turner, Edward L. Ratcliff, and Isaac Ratcliff, were the defendants.” He read an execution on this judgment, which was levied on the land in controversy, and the deed of the sheriff of Yazoo county to James Biles and Charles E. Mount, to the land; and proved that an abstract of this judgment had been duly enrolled, prior to July 1, 1841, in the clerk’s office of the circuit court of Yazoo county; he also proved that James Biles, and Charles E. Mount, and William Ferriday, had leased to him the land in controversy* for the year 1843; and this was all- the testimony before the jury.
    Neither of these leases were enrolled, or otherwise referred to in the bill of exceptions, and were not in any part of the record; nor were the title bond from James C. Hawley to Car-radine, or the deed from Carradine and wife to Ferriday, further noticed in the record, than as above stated. ,
    The judgment in favor of P. B. Pope & Go. against Edward L. Ratcliff, under which the lessors of. the plaintiff claimed, was in these .words: “The defendant came into court, in his own proper person, and confessed judgment to plaintiffs for the sum of ninety dollars and sixty-four cents; it is therefore considered by the court that the plaintiffs recover of the defendant the said sum of ninety dollars and sixty-four cents, for their damage by them sustained, by reason of the non-performánce of the premises in the plaintiff’s declaration mentioned; together with their costs by them about their suit in this behalf expended, &c.; stay of execution, six months.”
    The defendant, after the testimony was closed, asked the court to instruct the jury, “ that if they believed from the evidence that the judgment of P. B. Pope & Co. against Edward L. Ratcliff was rendered with stay of execution six months, the lien of said judgment does not take effect until the expiration of said stay, and if they further believe, from the evidence, that the said James Biles and Charles E. Mount purchased the locus in quo as the property of said E. L. Ratcliff, under a judgment rendered during the existence of said stay, then the said Mount and Biles acquired an outstanding title out of the lessors of the plaintiff, and the jury will find for the defendant.” These instructions were refused, and the exceptions taken and signed, and a writ of error prosecuted.
    The errors assigned are,
    1. In permitting the deed, marked A, with the defective acknowledgment, to be read to the jury.
    2. In permitting the deed, marked B, to the bank, under the judgment against Hawley, to be read in evidence.
    3. In refusing the instructions asked for by the defendant.
    
      
      Charles E. Mount, for plaintiff in error.
    The counsel for plaintiff in error, in support of the first assignment, insist that the objection to the reading in evidence the copy of the deed marked A was well taken; because, 1st, the deed was improperly acknowledged, as it doth not appear that Harrison, the grantor, acknowledged it, who was alone competent to make such acknowledgment. Now by the record it appears, that George Crockett acknowledged that he signed, sealed, &c.; the deed being therefore improperly acknowledged, should not have been admitted to record, and therefore the record or copy of said deed could not be legally read. '
    2. And if the acknowledgment be defective, as we believe it is, it would not have been competent for lessor of plaintiff to have read the original deed without proof of grantor’s signature, which was not made..
    3. The deed is made to a piece or parcel of land not levied on by the execution of P. B. Pope & Co. against E. L. Ratcliff, and this being the only execution sale emanating upon a judgment against Edward L. Ratcliff, by said Harrison, sheriff, it is clear the deed of Harrison, the sheriff, does not convey the right, title or interest of Edward L. Ratcliff. It must appear affirmatively by the execution that such a levy was made. By reference to said execution, attached to the bill of exceptions, and marked C, it will be perceived an entirely different tract of land is levied on, from that contained in the deed from Harrison to Planters Bank, marked A.
    In support of 2d error, it is contended-, that the deed from said Harrison to -Planters Bank, marked B, was improperly admitted, because it did not tend to prove the issue, and .was calculated to mislead the jury. John M. McMorrough entered four-eighths of the land in controversy, and conveyed to said Edward L. Ratcliff by title bond in 1832, which Ratcliff does not appear to have conveyed to Hawley or any one else, the sale of said four-eighths as the property of Hawley by the sheriff, unless he had title, and the mere possession by Hawley would not vest in-Hawley a title; Hawley might have been in possession as a mere intruder upon the land, and surely such. possession would not sustain ejectment, and it is not shown that he. went in under even color of title. It is believed that Ratcliff conveyed to Hawley by title bond, 10th Nov. 1838, and Hawley not having complied with the title bond, the land reverted to Ratcliff, but these facts do not appear in the.record. The proof shows that Hawley was in possession in 1836, 7 and 8; not after. There is no title shown to have been in Hawley, save that of occupancy ; then could a sale of Hawley’s interest, he being shown not to have any, support an ejectment? We think not.-
    2. The deed was improperly admitted, because the description of the land would not avail the lessor of plaintiff in ejectment, even if Hawley had had an interest in the land and it was sold; a return by the sheriff to a writ oí fieri facias, that he had levied upon a “ part of a tract of land called B, supposed to contain, &c., is not sufficient, would be quashed on motion, and unavailable in ejectment to prove title in purchaser.” Clark v. Belmear, 1 Gill & Johns. 443 ; Williamson v. Perkins, 1 Harr. & Johns. 449 ; 2 Harr. & J. 147 ; 3 Harr. & J. 206 ; 1 Harr. & Gill, 172, 435. The reason of the law is, the sheriff would be unable to execute the writ of habere facias possessionem properly. Here the deed B and levy on execution, contains “ the tract on which James C. Hawley formerly resided, being south of Benton, and adjoining the lands of Jesse S. Brown; deceased, and William Bizland, and others, containing about five hundred and twenty acres,” only four hundred acres of which is described by surveyors’ numbers. We think we have shown Hawley had no interest in the subject of levy and sale by execution. But suppose he had such an interest, it was in proof that it was sold under an execution emanating on the judgment of Planters Bank v. Hawley, the lien of which was adjudicated in 4 How. 130, and if we rightly understand that decision, the lien of that judgment was postponed until October, 1838.
    For third assignment of error it is insiáted, that if even the lessor of plaintiff bought Ratcliff’s title, the judgment of P. B. Pope & Co. against E. L. Ratcliff, was rendered 24th Feb. 1838, with stay of execution six months, while the purchase of Biles and Mount was under a judgment' rendered in April, 1838, against Ratcliff. It is insisted, that a purchaser under the judgment rendered during the stay, has the better title. It seems to have been decided in 4 How. 130, 178, that any interference by the creditor with his judgment so as to suspend his Hen, operates as a fraud upon those with whom it interferes; and so in 7 How. 377, the point we now raise was contended for by appellee, but the facts did not bring the court to its consideration and adjudication. A stay of execution upon the record, as in this case, places it out of the power of the creditor to assert his lien until the expiration of the stay; then as to James Biles, who sued for the use of Thacker W. Winter v. Ratcliff, the judgment was dormant and his lien took effect April, 1838. It is expressly decided in 1 Brock. R. 166, that “ the lien of a judgment with stay of execution, does not take effect until the expiration of the stay.” Judge Story, in 1 Peters R. 443, says, “it is not understood that a general lien by judgment constitutes per se a property or right in the land itself.” It would seem to be the right to put the lien in force, and subject the property to the conclusion of the law, that would entitle the creditor to a jus in re. 2 Brock. R. 252. The record shows the plaintiff in error to have leased from Mount and Biles; if Mount and Biles acquired a good title as against lessor of plaintiff, it being in proof that plaintiff in error leased from them, then the court erred in refusing the instruction.
    Having shown that Hawley had no title which would sustain an action of ejectment, nor his purchaser under him, we come back to the point, whether the purchasers, Mount-and Biles, of four hundred acres, portion of the locus in quo, under the fi, fa. on judgment of Biles, use of jWmter v. Ratcliff, rendered in April 1838, have not a better title than a purchaser under' a judgment rendered in February, 1838, with stay of execution six months ? The act of 1824 it is thought does not militate; that statute is, as it were, giving a special privilege to creditors who stayed their demands to have the property bound from entering their judgment,- but in a question between that class of creditors and those who did not extend the privilege, I apprehend that the legislature did not intend to give a preference to those who stayed their just demands; this would seem too much like legislation in favorem, fraudis, which we ought not to suppose. In that statute, the legislature has enacted that “all judgment shall bind the property of defendant from their entering up.” This court‘has so construed that statute, or cases arising between conflicting purchasers under it, that a suspension of the right to sue out execution, by a creditor on his judgment for a definite time, postpones the lien of his judgment to a junior judgment creditor, who has the power to exercise the right'during that suspension. If all judgments have lien alike, then there can be perceived no distinction between a creditor, who obtains a judgment by confession, or in the usual modes of nil dicit, or verdict of a jury. The rules adopted by this court upon the construction of that statute, have become fixed and settled rules of property. Those decisions have not been made hastily, but upon full argument and thorough investigation by the court, and it is insisted that the authorities upon this statute are mainly in support of the position we take.
    Battaila, on the same side.
    It. is believed that the judgment of the court below in this case is clearly erroneous.
    No proof was made by the plaintiff in the court below, that the defendant below was in the possession of the disputed premises at the time of the commencement of the action. And it is expressly stated in the bill of exceptions, that the evidence detailed therein was all the evidence given in on the trial. It appears that defendant below proved that he had leased the locus in quo, but this is no proof that he was ever in possession. This court has decided that, in an action of ejectment, it is now necessary in all cases, to prove the defendant’s possession of the premises in controversy at the time of the commencement of the suit. Newman v. Foster's Heirs, 3 How. 383; 2 S. & M. 220.
    The declaration is fatally defective, and its defects are not cured by the verdict and judgment. The description of the disputed premises in the declaration, which description is literally followed in the verdict, is too uncertain and ambiguous. No valid and operative judgment can be based on such a declaration and verdict. It would be incapable of enforcement. The sheriff, on the writ of habere facias possessionem coming to his hands, could not know what was the locus in quo, of which he was to deliver possession. It is insisted, that, for this purpose, the description of the premises recovered must be sufficiently certain. Tillinghast’s Adams on Eject. 23.
    That the description in the declaration and verdict is too defective to found a judgment upon, is established by the following authorities: 8 Cow. 406, 427; 5 Watts R. 79 ; 2 Vern. R. 348; 7 Ibid. 190; 4 Stew. & Port. 365 ; 2 Harr. & Johns. 130, 147 ; 1 Harr. & Gill, 172-, 1 Gill &' Johns. R. 443; Tillinghast’s Adams on Eject. 23. The attention of the court is particularly directed to the case in 8 Cow. 406. .
    No title is shown to have been in Hawley, whose interest plaintiff below claims to have bought at sheriff’s sale, as he attempted to show by sheriff’s deed, marked B, to four eighths of said land, which is described by numbers in the declaration and verdict. These four eighths were, it was proved, entered by one John McMorrough, who sold the same to E. L. Rat-cliff, as appears by title bond from said McMorrough to said Ratcliff, the purchase-money for which was paid by said Rat-cliff to said McMorrough ; but no conveyance was ever made by said Ratcliff to said Hawley for these four eighths. To be sure Hawley is proven to have been in possession of these four eighths some three years. This possession, however, is no evidence of title in him. Defendant below does not claim title through Hawley at all, but traces his title to, and deduces it from, Ratcliff.
    The deed from Harrison, sheriff, to plaintiff below, conveying four hundred acres of said land, marked A, sold under judgment of P. B. Pope & Co. against E. L. Ratcliff, given in evidence by plaintiff below on the trial, was improperly admitted as evidence, being objected tp by defendant below. The bill of exceptions states that the deed was offered in evidence, which was objected to on the part of defendant below, because the acknowledgment was not properly made. But to have made its acknowledgment a question connected with its admissibility, it could not have been the original deed, proof of the execution of which would have been sufficient to have admitted it, but must have been the pretended registry of said deed, which was offered in evidence. If the latter, it was clearly inadmissible, because it does not appear who acknowledged it; and though the enrollment or registry of a deed, required by law to be registered, is evidence of equal degree as the original, yet a deed must be acknowledged or proved before it can be registered,- and its registry be evidence; and in this case neither was done. If the original deed was offered in evidence, then it was equally inadmissible, because it does not appear that there was any proof of its execution; and the bill of exceptions states, that it contains all the evidence given in.
    The deed from Harrison, sheriff, &c; to plaintiff below, marked and referred to in the bill of exceptions, as deed B, purporting to convey all of the disputed premises to the plaintiff below, as sold by said sheriff under an execution or judgment of the said President, Directors & Co. of said Planters Bank v. James C. Hawley et al., it is contended, conveyed no title to the land in dispute for another reason. The bill of exceptions shows that the counsel for plaintiff below admitted, on the trial, that the judgment under which this deed was made is the same judgment of the Planters Bank v. James C. Hawley et ok, the extent of the lien.of which judgment this court decided in the case of J. J. Michie v. The Planters Bank, reported in 4 How. R. 130. This judgment was obtained on forfeited forthcoming bond, the 13th day of October, 1837, as appears from the deed, but, from the record and report of the case, it appears was held up by the plaintiffs in it, in fraud of the rights of other creditors, so as to postpone its lien, as was decided by this court, some twelve months, and so as to let in judgments recovered in April, 1838. The judgment of James Biles, tese of Thacker W. Winter v. E. L. Ratcliff,¡ was rendered the 24th April, 1838; so that the lien of this latter judgment, under which defendant below claimed, accrued during the suspension of that of the Planters Bank, the lien of which latter judgment, not being revived until October, 1838, when the suspension was removed, was, at the time of said sale, junior, and postponed, in point of priority, to that of the judgment under which the defendant below claims.
    It is further contended, that the court below erred in refusing the instruction asked for by the counsel for the defendant below.
    In deciding upon the correctness or incorrectness of the opinion of the court below, in refusing this instruction, it becomes necessary for this court to declare the proper construction to be placed upon the statute of 1824, with regard to the lien of judgments. At common law the judgment was not a lien upon lands; but by the common law, the profits of the land might Ire sequestrated by a levari facias under a judgment, and the goods and chattels sold under a fieri facias. Afterwards, by statute of Westminster 2d, 13 Ed. I., the writ of elegit was given, by which a moiety of the lands is delivered to plaintiff, until the debt be levied by a reasonable price; and the lien of a judgment upon lands became a consequence of the right to sue out an elegit. At common law, the fieri facias had relation to its teste, and bound the defendant’s goods from that time; and by statute 29 Charles II. it bound the goods only from the time of its delivery to the sheriff. The Mississippi statute of 1822 dispensed with the elegit, and made lands as well as personalty the subject of seizure and sale under the fieri facias ; and the same statute declared that the writ of fieri facias, or other writ of execution, should bind the property of the goods, lands, and tenements, against which such writ is sued forth, but from the time that such writ shall be delivered to the sheriff, &c. The act of 1824, entitled “ An act further to extend relief to debtors,” (see sheet acts of 1824, 101 -106, in the 7th section of the act,) provides, that when property is levied on b g fieri facias, or surrendered as a capias ad satisfaci-endum, it should be valued by three freeholders, and if on the day of sale it did not- bring two thirds of the valuation, the sheriff should sell the sáme on a credit of twelve months, taking bond with good security, which should be returned to court, and should have the force and effect of a judgment; and, on failure to discharge it, execution might be sued out against the obligors, and their property sold for cash.. The 8th section provided, that if said bond should be quashed, execution might issue on original judgment. From the title and terms of this statute, it is evident that it was intended as a stay-law, and to apply to all kinds of judgments. Hence, in the 12th section, it goes on to provide, “ That the clerks of the different courts in each county, in this state, shall not .issue execution in any case, when judgment has been confessed, until after the expiration of such stay of execution; provided, also, that if the debtor will go forward to the clerk, and exhibit to him the receipt of the plaintiff, or his attorney, for the amount of the judgment, any time before the expiration of such stay, and pay such sum as may be due for the costs thereon, no commission for collection shall be taxed in the bill of costs; and that, in all cases, the property of the defendant shall be bound, and liable to any judgment that may be entered up, from the time of entering such judgment.” Now by the phrase, suck stay, let me ask what stay is referred to 1 The word stay is nowhere used in any preceding part of the statute; but the 7th section, though it does contain the word stay, by its terms clearly provides a stay by means of the valuation and bond authorized to be taken. The statute, by the very force of its title, was nfanifestly intended to favor debtors and prevent the sacrifice of their property. So, in the same spirit, it goes on to provide, that, if the debtor pays the amount of the judgment, at any time before the expiration of such stay, and the costs, no commission for collection shall be taxed in the bill of costs. Officers' commissions, of course, are meant. The object of the legislature was to give, in this first part of this 12th section, the privilege of the stay provided in the 7th and other .foregoing sections of the statute to defendants in judgments by confession, as well as to defendants in other descriptions of judgments.
    The argument on the construction of the act of 1824, thus far, has been made with a view to meet the contemplated position of the counsel for the defendant in error, who will contend that the judgment of Pope & Co. against Ratcliff, being a judgment by confession, with a stay of execution for six months, comes within the express language of this statute; and holds its lien, not from the time of the expiration of the six months’ stay, which is a part of the judgment, and the condition upon which it was rendered, but from the time of its being entered. If I am right in the construction on the first part of the 12th section of that act which I contend for, then it was the object of the statute not to put judgments by confession on a different, but on a like footing, in this respect, with all other kinds of judgments. Next, then, we are to inquire whether, admitting the latter part of the said 12th section intended the lien of judgments generally to date from the time of entering them, an express stay of execution, by consent of the plaintiff entered of record, as a part of and condition of the judgment at the time of the entry of the judgment itself, will postpone such lien till the expiration of such (last mentioned) stay; or whether there can be, under the statute, an existing lien when there is no power to sue out execution. A lien is defined to be neither a jus in re, nor a jus ad rem, but simply a right to charge property with the payment of some debt or other charge. If the latter be the true definition then, where a party has not the right to charge the property, or subject it to the satisfaction of the debt, the lien does not exist; and this is the case whilst execution on a judgment is stayed. There are different kinds of lien, and there may be liens where no immediate right to execute the lien exists • but a judgment is not one of this kind. The judgment is for the recovery of money or property; it is the conclusion of law upon the facts in litigation between the parties; and a judgment does not conclude the‘subject of controversy, when its final effect and power of enforcement are, by its terms, stayed and delayed; such delay is foreign to the end and object of a judgment. The law does not encourage delay; one of its maxims is, “ Expedit reipublim ut sit jinis litium.” The judgment is not consummate, until the power of enforcement exists. If the lien of a judgment were held to-exist when its enforcement was postponed, it would be a doctrine against the policy of the law, in that it would encourage delays. This court declared, in the case of Michie v. The Planters Bank, 4 How. 130, that the lien of a judgment was but a security, to be pursued with diligence, and in good faith.
    If the legislature has given to every suitor a lien from the entry of his judgment, it has, notwithstanding, left him the liberty of retaining that lien, or, -by agreement,- of relinquishing or postponing it, especially when, by so doing, he injures no other person’s rights. This court has repeatedly decided, that a judgment creditor’s lien may be lost by holding up or suspending his execution, or may be defeated by some act of his deemed fraudulent against other creditors. See 4 How. 130, 178; 6 Ibid. 178; 6 Ibid. 223.
    It is further contended, that the lien of the judgment under the act of 1824 only extends to and binds the goods and lands, as against the debtor and his heirs or purchasers under him, not as against or between judgment creditors. 1 Pirlle’s Dig. Execution ; Payne v. Drew, 4 East, 538 - 540; Lovac v. Jenkins, 2 Eq. Cas. Ab. 381 ; 4 Bibb, 29; 3 J. J. Marsh. 212; 12 J. R. 162, 403 - 408 ; 4 Kent, 436, 437; as to meaning to be given to the word “ bound” in the statute.
    The record, in this case, shows not only that improper evidence was admitted to the jury on the trial below, but that the jury gave a verdict which was contrary to law and evidence, and although no motion was made for a new trial in the court below; and this court has decided, that, in such cases, it will grant a new trial. 2 S. & M. 38, 638.
    
      Wilkinson and Miles, for the defendants in error.
    The first question to dispose of is presented by the instruction which was refused, as we contend, rightly. The stay of our judgment did not release its lien, at any rate, as between the parties to this record. We repeat what was so well said by the chief justice, in the case of Fonte v. Campbell, 7 H. 383: “ It will not be denied that, by giving a stay of execution, an elder judgment creditor may postpone his lien. The reason of the rule of law seems to be to prevent property from being covered by a fictitious lien, or by a judgment creditor who uses his lien for the benefit of the defendant, to the prejudice of other judgment creditors. When the facts will not justify the inference that the judgment was fraudulent, or, being bona fide, that it is fraudulently employed to protect the defendant’s property against other judgment creditors, it would seem that the rule of law could have no just application.” Do the facts of this case furnish ground for either of the inferences pointed to by the extract we have made 1 The court will see, at a glance, that they do not, as we purchased more than a year before this execution was issued.
    But was there any stay in point of fact 1 No, none embodied in the judgment; and no evidence out of the judgment of any stay, ordered or assented to by us, but only a mere memorandum of the clerk, (which is no part of the record, properly considered,) that there was a stay, or that there was to be a stay. Such a minute as this imports not record verity, and is not evidence of any agreement on our part, such as can bind us in law. See Newell & Pierce'v. Hamer et al., 4 H. 684. There is a feature in the record which wears somewhat the semblance of error, but which, in fact, is as it should be. It is the certificate of acknowledgment to the deed of the sheriff of Yazoo, or, rather, of one of them under which the bank claims. This, it will be contended, perhaps is informa!, and did not authorize the reading of the record of the deed to the jury under the act of the legislature. It is in effect, however, a compliance with the statute, and a good and sufficient acknowledgment, according to the doctrine of the case of Halls v. Thompson, 1 S. & M. 488, which will effectually dispose of the objection, should it be raised.
    But the judgment of the Planters Bank v. Hawley, under which we also purchased the locus in quo, would sustain our title if the judgment of Pope & Co: v. Ratcliff did not. True it is the judgment which was pronounced by this court to be annulled in its force as a lien, in the famous case of Michie v. The Planters Bank; but it was so pronounced only as to Michie, as against the judgment under which Pickett, the plaintiff in error, purchased. It cannot fairly be so considered; for the execution in the case of the Planters Bank v. Hawley, was sued out within a few months after the judgment of Biles v. Ratcliff was rendered, and eighteen months, perhaps two years, before the judgment of Biles (under which the plaintiff in error claims,) was executed upon the land in dispute.
    We have considered this case quite independently of the statute of 1824. In the examination of the- cause, however, the court may have occasion to give a construction to the 12th section of this act. It will be found on the 106th page of the printed laws of the session of 1824. The case in Brocken-brough’s Rep. 166, is not analogous, as the court will perceive.
   Mr. Chief Justice Shaekev

delivered the opinion of the court.

This was an action of ejectment, brought by the Planters Bank against Pickett, to recover five hundred and twenty acres of land. The errors assigned are,

1. The court erred in permitting the introduction and reading of the deed, marked A, to the jury, from Harrison, the sheriff, to the Planters Bank, and in overruling the objection thereto.

2. The court erred in admitting as evidence to the jury the deed, marked B, from Harrison, sheriff, to the Planters Bank.

3. The court erred in refusing the instructions prayed for below, and,

4. The court erred in giving' judgment for the defendant in error, whereas, by the law of the land, it should have been for the plaintiff in error.

We must premise, in this case, that the bill of exceptions is very defective. It refers to certain instruments, introduced on the trial, designating them as being marked with certain letters of the alphabet, but the instruments are not incorporated in the bill of exceptions. Certain instruments of a like description, have been inserted in the record, but whether they are the same used on the trial we cannot know, as they are not communicated to this court through the proper medium. We should, therefore, feel much reluctance in reversing the judgment, were the errors ever so glaring. But an examination of the several documents, introduced on the trial, has resulted in a conclusion that the judgment cannot, on account of their introduction, be reversed.

The first error assigned is, that the court improperly permitted the deed of the sheriff to the plaintiffs below to be read, because of a defect in the certificate of acknowledgment. The certificate is regular, with one exception. Instead of saying, “personally appeared before me, George Crockett, clerk of the probate court, in and for said county, the within or above-named A. G. Harrison, who acknowledged, &c.,” the clerk uses this language; “personally appeared before me, George Crockett, clerk of the probate court, in and for said county, whose name is subscribed to the within deed as such, who acknowledged that he signed, sealed, and delivered the same, &c.” The name of the sheriff is omitted, evidently by a clerical mistake, whilst the certificate is full and explicit, that the sheriff was the individual who signed the deed, and who made the acknowledgment before him. The statute lays down the form, it is true, but it also declares that if the acknowledgment is to the same effect as the form given, it will be sufficient. And it is believed that the certificate of the clerk is very nearly, if not entirely, to the effect required. But suppose it should be insufficient, does that alter the case ? The land claimed was purchased by the Planters Bank, under two different executions, and separate deeds taken, and if either be good, it is sufficient. The property was sold on the 5th of July, 1841, under both executions; under one execution, as the property of Ratcliff, and under the other as the property of Hawley. The judgment of Pope v. Ratcliff was rendered on the 24th February, 1838. The deed made under this judgment is the one which is said to be defective. The judgment in favor of the Planters Bank v. Hawley, was rendered on the 25th of November, 1836, and the deed under this judgment is regular. Ratcliff, it seems, was owner of the land when Pope recovered the judgment against him, and afterwards Hawley acquired title, so that the property was bound by both judgments. How or when Hawley acquired title does not very distinctly appear, but the defendant himself traces his title to Hawley, by introducing a lease from Ferriday, who purchased from Carradine who was Hawley’s vendee, besides which, it appears that Hawley was in possession during the years 1836, 1837, and 1838. The defendant, therefore, is not in a condition to dispute Hawley’s title. Hawley, it seems, sold the land to Carradine, on the 21st of February, 1837. If the bank, then, acquired a good title under the sale of the property, as Haw-ley’s, of course it was sufficient.

But it is, in the second place, said that the court erred in permitting the deed of the sheriff for the land, as Hawley’s property, to be read to the jury. It appears, by the bill of exceptions, that the judgment and execution were both read. But it is insisted that this judgment was not a valid lien, because it had been declared inoperative in a suit between Michie and the Planters Bank, this being the case reported in 4 How. 130. It is a mistake to suppose that that adjudication can have any effect in favor of creditors who were not then before the court. We did not declare the judgment of the Planters Bank fraudulent and ■ void. The lien of the bank was declared “dormant as against the claim of Michie,” but that is the extent of the decision. The lien of the bank was not postponed as' against other persons. The bank was perfectly at liberty to proceed against any other property, except' that levied on by Michie, and accordingly it did sell on the 6th of July, 1841, under the judgment rendered in November, 1836, and the defendant even claims that this sale shall be vacated in favor of a judgment rendered against Ratcliff, in 1838, under which the same property was sold on the 16th of January, 1843, a year and a half after the bank had purchased under its older judgment. To sustain this position would be équivalent to declaring the judgment of the bank, and the sale under it, absolutely void; a declaration which we did not make in the case of Michie, and with still less propriety could we do it in this case, in favor of a sale made long after the bank had sold the same property.

In the third place, it is also said that the court erred in refusing to give the instructions asked by the defendant’s counsel. The instruction asked and refused was this; that if the jury believed, from the evidence, that the judgment of P. B. Pope & Co. against Edward L. Ratcliff was rendered with a stay of execution six months, the lien of said judgment did not take effect until the expiration of the stay, and if they further believe, from the evidence, that James R. Biles and Charles E.„ Mount (defendant’s lessors) purchased the locus in quo, as the property of said Ratcliff, under a judgment rendered during the existence of said stay, then the said Biles and Mount acquired an outstanding title, and the jury should find for the defendant. This instruction was very properly refused. It has generally been contended that the object of the act of 1824, making judgments a lien, was to protect such lien during the stay, and that the statute did not apply to other judgments. We have, however, construed it to extend to all judgments. Beyond all’ question it does embrace judgments taken with a stay of execution.

It has been insisted, in argument, that there was no proof of the possession of the defendant below. Assuming that all the evidence is set out in the bill of exceptions, the objection would be well taken, but for one circumstance. The defendant proved that he had two leases; one from Biles and Mount, and the other from Ferriday, who derived title from Hawley. The leases must have been introduced to prove his right of possession, and furnish a presumption of possession so strong that we could not well reverse the judgment on that account. Besides, this was not a question raised in the court below, and it must therefore lose much of its force when raised for the first time in this court.

But it is also said that the plaintiff below was not entitled to judgment, because the land is not sufficiently described iri the declaration. It appears that the land was purchased of the United States, and we know that all the public lands, prior to sale, were surveyed into sections, and the law also provides how these sections shall be subdivided. The description of land, according to the number of the section, township and range, of these public surveys, is the best description that can be given, because it may thus be identified to a positive certainty by record evidence. The declaration describes the land, first generally, byr .its vicinity to the lands of other persons, and then particularly, thus ; “ the W £ of the Nff | the SE| the E of the S W ¿ of section number twenty three and the W ¿ of the N W £ of section number twenty six township number eleven of range number one west.” The description may follow the description given in the certificate of entry. The letters and figures used may constitute the appropriate mode of describing land which has been entered, or their meaning may have been susceptible of proof if the question had been raised below, but it was not. But be this as it may, the sections,-township, and range, are given in full, and this is a sufficient, description, especially when it is to be remembered 'that the plaintiff in ejectment takes possession at his peril.

The judgment must be affirmed.  