
    Jackson, ex dem. Kane & Kane, against Sternbergh.
    In ejectment, the lessor of 'plaintiff offered in evidence, 1. A judgment against defendant, (P.) and A., andan alias fi.fa. issued thereon. 2. A return of the sheriff that he had caused to be made of the goods and chattels, lands and tenements of P. and A., $2062, parcel of the debt and damages, &c., in part satisfaction, &c., and that the said P. and A. had no more goods or chattels, lands’ or tenements, whereof to be made the residue, &c. 3. A deed from the sheriff to C. 4. A deed from C. to the lessors of plaintiff, executed on the same day. It further appeared that C. was the agent or trustee of said lessors in making the purchase that the lessors paid the purchase money, and that defendant, at the time of the sale, was in possession of the premises.
    
      Held, that the words “ as before,” &e., in the alias fi. fa., might be rejected as surplusage, no previous fi. fa. having in fact issued:
    That the sheriff’s return set forth sufficiently that there were no goods or chattels belonging to the defendant.^
    An incorrect return by a sheriff of the fi. fa., will not defeat the sale, or affect the purchaser’s title.
    After a sale of land by the sheriff under a fi. fa., the defendant becomes quasi a tenant at will to the purchaser, and his possession is not deemed adverse. Lewis, J. dissenting.
    Where a purchase was made at a sheriff’s sale, by a person as agent for the plaintiff who paid the purchase money, and the land was conveyed to the agent j it was held, that the deed created a resulting trust for the plaintiff which might be proved by farol evidence.
    This was an action of ejectment. The cause was tried before Mr. Justice Letois, at the last Montgomery circuit.
    The plaintiff offered in evidence exemplified copies of a judgment obtained in this court in favor of the lessors of the plaintiff against the defendant, and one A. Sternbergh, and of an' alias fi.fa. issued thereon, and directed to the sheriff of Montgomery, with a return of the sheriff endorsed in the words following : “ By virtue of the within writ, t have caused to be made of the goods and chattels, lands and tenements of the within named Peter and Adam Sternbergh, 2062 dollars, parcel of the debt and damages within named, which said moneys I have ready, &c., in part satisfaction of the said debt and damages, and I do further certify that the - said Peter and Adam have no more goods or chattels, lands or tenements, in my bailiwick, whereof I can cause to be made the residue of the said debt and damages, or any part thereof.” The plaintiff then produced a deed from the sheriff, conveying the premises in question to one Cox, he being the purchaser at the sheriff ’s sale under the execution, and also a deed from Cox to the lessors of the plaintiff for the same premises, executed on the same day.
    It further appeared by parol proof, that Cox was the agent or trustee' merely of the lessors of the plaintiff [*154] in *making the purchase, and that the defendant was, at the'time of- the sale, hrthé actual possession of the premises, and continued in possession until the time of the trial.
    A verdict was- taken for the plaintiff subject to the opinion of the court, whether he was entitled to recover.'
    On the argument, the following points wére made.:
    1. Whether the alias Ji. fa. was regular, and ought to have been admitted in evidence, without showing that a fi. fa. had previously issued,' 1 •
    
      2. Whether the sheriff’s return was sufficient, as it did not state, that he had sold the lands and tenement's of the defendant, for want of goods and chattels; and if insufficient, whether the- return was essential to the title of the purchaser.
    3. Whether parol proof of the trust in Cox could be admitted, and whether the possession of the defendant must not be deemed to have been adverse, and the conveyance by Cox to the lessors of the.plaintiff, therefore, void.
    
      Van Vechten, for the plaintiff.
    
      Metcalf and Bufir, for the defendant..
   LANSING, Ch, J.

The objection to the writ as an alias fi.fa. is merely formal. It is not pretended that airy previous, execution had issued against the defendant, or that the judgment was in any manner satisfied. The circumstance of its being expressed to be an alias could not, therefore, prejudice any right of the defendant, nor could it vary the legal effect of the writ. I think that the clause constituting it an alias, may well be rejected as surplusage, and ought not to be allowed to defeat a title that was otherwise’' ■fairly acquired.

If a former execution had issued and a levy had been attempted" under the alias, the court would in a summary way have redressed the defendant, by setting it aside for irregularity.

As to the. return of the sheriff, it in effect shows that there were no goods or chattels belonging to the defendant ; for after stating the sum which had been made of the goods add chattels, lands and tenements generally, it Certifies that the defendant had no other goods or [*155] chattels; and the whole sum levied was not sufficient to satisfy the execution.

But the sheriff’s: return, in my opinion, was not essential to the title of the purchaser. That title was not created by, nor dependent on the return, but was derived from the previous sale made by the sheriff by virtue 'of his writ. It was sufficient for the purchaser, that the sheriff had competent authority, and sold and executed a deed to him.

The proceedings in the case of an extent upon an elegit do not apply to the writ of fieri facias. On the writ of elegit no sale can be had, but the sheriff takes an inquisition by a jury Who set off the moiety by metes and bounds. The inquisition is there necessary to be returned, and together with the return constitutes the title. Here the sale and the sheriff’s deed are sufficient evidence of the title, and if the purchaser cart show that the sheriff has authority to sell it is enough, and he need not look further.

With regard to the intermediate conveyance to Cox, it appears that he acted as the agent of the lessors of the plaintiff merely, and received it as their trustee. The consideration money was not paid by him, but by the lessors of the plaintiff, and a trust of course resulted for their benefit. The statute of frauds does not, therefore, apply ; for a resulting trust or a trust by the act or operation of law, is expressly excepted by that statute, and remains as at common law susceptible of proof by parol. If this- were not the case, the trust in this instance was executed and extinguished by the conveyance of Cox to the lessors of the plaintiff, and Cox could not afterwards defeat it.

Considering Cox as a mere trustee, his possession was in fact the possession of the lessors of the plaintiff. This alone is an answer to the argument founded on the idea of adverse possession. Besides, the possession of the [*156] defendant at the time of the conveyance by *Cox to the lessors of the plaintiff can in no sense be deemed to be adverse- Cox held under the title of the defendant, and not in hostility to it; and the latter after the deed to Cox, became quasi his tenant at will, and would be deemed to continue in that character until an actual disseisin or disclaimer on his part. This was not attempted, and Cox immediately conveyed to the lessors of the plaintiff, who then became lawfully seised.

On every ground, therefore, I am of opinion that the plaintiff is entitled to judgment.

Radcliff, J., Kent, J. and Benson, J. were' of the same opinion.

Lewis, J.

I concur in "the opinion which has been de- ' livered, and the reasoning on which it is founded, except as to the last point, I do not consider the title, of the lessors of the plaintiff as derived from, but- paramount to that of the defendant. The plaintiff’s right to recover cannot, however} be affected by that circumstance, as Cox was a mere agent acting for the lessors of the plaintiff, and it is' immaterial whether the sheriff’s conveyance was made to him or immediately tp his principals.

Judgment for the plaintiff. 
      
       See an elaborate statement of the authorities upon this point,‘Cowen & Hill’s Notes to 1 Phil. Ev. 1093, 1094.
     
      
      
         This doctrine is re-affirmed in Wheaton v. Sexton, 4 Wheat. R. 503, 506 ‘‘ The purchaser,” says Johnson, J. delivering the opinion of the court, “ depends on the judgment, the levy, and the deed. AH other questions are between the parties to the judgment and the marshal. 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.” S. P. Mitchell v. Lipe, 8 Yerger, 179. Judge Cowen considered it “ enough for the purchaser that the officer had authority to sell and did sell to him and executed a deed.” Cowen & Hill’s Notes to 1 Phil. Ev. 1094.
     
      
       The principal cases upon this point in this state, are Foote v. Colvin, Jackson v. Matsdorf, both cited in the next note, Jackson ex dem. Whitlock v. Mills, 13 Johns. R. 463, Jackson ex dem. Seelye v. Morse, 16 id. 197. But by the Revised Statutes, vol. 1-, 728, when a grant for a valuable consideration shall be made to one person and the consideration paid by another, no trust-shall result in favor of the person paying the money, but the title shall vest in the alienee, subject to the claims of the existing creditors of the person paying the money. The resulting trust will still be valid, however, if the alienee took the deed, in his own name, without the knowledge or consent of the person paying the money, or in violation of some trust,
     
      
      
         Foote v. Colvin, 3 Johns. R, 216. Jackson ex dem. Benson v. Matsdorf, 11 id. 91. 1 Hilliard’s Ab. 209, and references.
     
      
      
        Jackson ex dem. Klein v. Graham, 3 Caines’ R. 188, 189.
     