
    James R. Kane vs. Doe ex dem. Thomas Mackin.
    The delivery of a sheriff’s deed need not take place on the day of its execution, or of the sale, in order for it to take effect from the day of sale ; the delivery of such a deed, though after the time of sale, relates back to that period.
    The actual delivery to the grantee is not essential to the validity of a deed; it may be delivered to a third person for him, or if it be signed and sealed, and declared by the grantor, in the presence of attesting witnesses, to be delivered, it is, if there be nothing to qualify it, an effectual delivery.
    Therefore, where a sheriff executed a deed on the 5th day of April, and without parting with the possession of the deed, on the 15th of the same month acknowledged before an officer, that he signed, sealed and delivered the deed on the day of its date, it was held that the deed was effective from its date.
    In an action of ejectment, brought by a purchaser at sheriff’s sale against the defendant in execution, it is only necessary to introduce the judgment, and the process upon it under which the property was sold; the intermediate executions need not be introduced.
    In an action of ejectment against a defendant in execution, brought by a purchaser at sheriff’s sale, it is not error for the court to refuse to permit the defendant to offer in evidence, the executions which issued on the judgment, prior to the issuance of the one under which the property in controversy was sold, unless they tend either to prove satisfaction of the judgment or title in the defendant.
    The fact that, among various executions against the same person, some have been levied on a particular lot of ground, which has not been sold for want of time, does not make the levy of the other executions on the same lot illegal or erroneous.
    Where executions on various judgments, in favor of different persons, are levied on the same lot, and it is sold under them, if one judgment and execution be regular, though all the others be vicious, or even void, the title of the purchaser will be good.
    A judgment in the court below in favor of the plaintiff in ejectment, will not be reversed, because the record does not show possession in the defendant below ; there being no bill of exceptions setting out the testimony, and it not appearing that such objection was made on the trial.
    
      In error from the circuit court of Adams county : Hon. C. C. Cage, judge.
    John Doe, ex dem. Thomas Mackin, sued James R. Kane in ejectment for a house and lot in the city of Natchez.
    On the trial, the plaintiff below read in evidence judgments rendered against Kane, in favor of Thomas Mackin, The Planters Bank, Messrs. Briggs, Lacoste & Co., Jane M. Speer, Agnes J. Glover, The Agricultural Bank, and Messrs. Sprague and Howell, respectively; and the executions which issued on them, under which the property in controversy was sold. He then offered to read Samuel B. Newman’s, the sheriff’s deed, which recited the judgments, the executions on them, the levy, the advertisement of the property in controversy for sale on the 5th day of April, A. D. 1841, the sale to Mackin, and concluded in this way: “In witness whereof, I, the said Samuel B. Newman, sheriff, as aforesaid, have hereunto set my hand and seal, this 5th day of April, A. D. 1841. S. B. Newman.” [seal.]
    Appended to this deed was this acknowledgment:
    
      “ State of Mississippi, Adams County.
    
    
      “ Personally appeared before me, the undersigned, justice of the peace in and for said county, Samuel B. Newman, sheriff of the county and state aforesaid, and acknowledged that he, as sheriff aforesaid, signed, sealed and delivered the foregoing of writing, on the day and year therein written, and for the purposes therein contained and expressed.
    In testimony whereof, I have hereunto affixed my name and seal this 15th day of April, A. D. 1841.
    W. S. PüRdue. [seal.] ”
    The defendant below objected to the introduction of the deed, because it was not delivered until after it was acknowledged, and proved that it had not been delivered until after the 15lh of April, 1841, because Mackin had not previously paid the amount bid.
    The defendant objected to the plaintiff’s reading of the executions under which the property was sold, without the intro-election of the previous and intermediate executions. This objection was overruled.
    When the plaintiff had concluded his evidence, the defendant offered to read the intermediate and prior executions on the judgments referred to; but the court below refused to permit him to do so, and he excepted, and embodied these intermediate and previous executions and the sheriff’s deed in a bill of exceptions. He then asked the court to instruct the jury, “ that delivery is essential to the execution of a deed, and that no title passes until delivery;” the court refused it, and charged the jury “ that the delivery in this case related back to the time of the sheriff’s sale.”
    It is not deemed necessary to notice more of the executions embodied in the bill of exceptions, than to state that one of the executions in favor of Briggs, Lacoste & Co. had been levied on property which had been sold, but the return did not show what that property was. And two other executions, one in favor of Briggs, Lacoste & Co., and one in favor of the Agricultural Bank, were previously levied' on the lot in controversy; which was not sold, as the return shows for want of time.
    The defendant sued out this writ of error.
    
      Thomas Reed, for plaintiff in error.
    1. The court erred in permitting the deed from the sheriff to Mackin to be read as evidence, under the demise laid in the declaration ; and in refusing to charge the jury “ that delivery is essential to the execution of a deed, and that no title passes until delivery.” 4 Kent, 54 ; Carr v. Hoxie, 5 Mason’s C. C. R. 60; Fairbanks v. Metcalf, 8 Mass. 230, 239; Hatch v. Hatch, 9 Ibid. 307, 310; Maynard v. Maynard, 10 Ibid. 456; Harrison v. Phillips Acad. 12 Ibid. 456, 463; Fay v. Richerson, 7 Pick. 91; Jackson v. Catlin, 2 John. 248; Tullinghast’s Admin’rs. 213, and note; 6 Cow. 147; 6 John. 273; Maybury v. Brien et al. 15 Peters, 21; Jacksons. Leek, 12 Wend. 105; Church v. Gil-man, 15 Ibid. 656.
    2. The court erred in charging the jury, “that the delivery in this case related back to the date of the sale.” 4 Kent, 454; 1 John. Ch. 288 ; 3 Barn. & Cress. 317.
    
      3. The principle that a party who sets up title must furnish all the evidence complete and full to support it, is well adjudicated. If the validity of a title depends upon an act in pais, the party claiming under it is bound to prove the performance of every act necessary to the completion of the title. Williams et al. v. Peyton, 4 Wheat. 77 ; Den v. Wright, Peters C. C. R. 64; 12 Johns. 213; 2 Ibid. 46; 7 Ibid. 536; 4 Hill, 92; Am. Common Law, title Execution, p. 196,197; diver v. Applegate, South. 479.
    That process can be shown to be irregular and void, and what is void process, see Lessee of Porter v. Neelan, 4 Yeates, 108, 232 ; 1 Cowen, 711; Woodcock v. Bennet, 1 Ibid. 711, 622; 5 Ibid. 417, 446; 3 Wendell, 382 ; 4 Ibid. 474.
    In the case of Burd v. Demsdale, 2 Binney, 80, the objection to the introduction of void process was sustained. When taken collaterally, and in the-case of Sheafe v. O’Neill, 9 Mass. 13, the title of a bona fide purchaser failed for the want of proper return.
    4. The defendant should have been allowed to read the intermediate fi. fas. They are all presented in the record, with returns upon several of them ; these fi.fas. show upon their face, that the property in suit had once been sold under these very judgments, attempted to be shown here, by the last writs of fi. facias. Some of them show that they have been satisfied ; a sale under a judgment satisfied is void. 11 Wend. 422. Others again show that executions emanating upon said judgments had been levied ; and this court has decided in case of Walker v. McDowell, 4 S. & M. 118, that a levy was aprima facie satisfaction of the judgment. These facts can be shown by reference to the executions themselves, which are a part of the •record.
    5. There was no proof that the defendants in this action were ■in possession of the premises sued for. Newman v. Foster, 3 •How. 383; Jackson ex dem. v. Ives, 9 Cow. 661.
    
      George Winchester, for defendant in error.
    1. The general doctrine, that a deed takes effect only from the time of its delivery is not controverted. But as between the grantor and grantee, and where the rights of no subsequent purchaser from, or creditor of the grantor is involved as against the grantee, we contend the day of the date, when acknowledged by the grantor as the day of delivery, cannot be contradicted by parol evidence; or at least, not unless “ the justice of the case requires it.” Fairbanks v. Metcalf,, 8 Mass. 239; Com. Dig. Tit. Bargain and Sale, B. 10; Goddard’s case, 2 Coke R. 4.
    2. But even if a delivery in fact, on a day subsequent to the date, not only of the deed, but also of the acknowledgment of the delivery, could, in such a case be proved by parol, yet as it was a cash sale by the sheriff, made on the 5th, the delivery of the deed made afterwards upon the 15th, would, upqn the understanding of the contract, relate back to the day of sale as one transaction, in judgment of law. It is not to be supposed, sheriffs can receive the purchase-moneys and execute and deliver deeds to purchasers, in the press of his official duties, upon all sales made by him on the very day of sales, during the sitting of the courts, when, by our law, the sale days came on. Yiner’s Abridg. Tit. Relation, 290, case of Harper v. The Bailiff of Darby; Heath v. Boss, 12 Johns. 140; 1 Johns. Cas. 81-85 ; 3 Caines R. 262; 4 Johns. 234; Jackson ex dem. Noah v. Dickenson & Thompson, 15 Johns. 309 ; Foster v. Mansfield, 3 Metcalf, 412.
    3. A conclusive answer to all the other errors complained of is, that if all the executions, (seven in number,) in the sheriff’s hands, and levied on the land, and the land sold under them, had been void executions, with the exception of only one of them; a sale under that one would have been a good and valid sale. Bacon v. Leonard, 4 Pick. 281. Two executions were levied, the sale under one. Court say, “One execution gives him (the sheriff) full authority to sell, and the appropriation of the fund has no relation to this authority.” “ Where a person has two or more powers of attorney to sell, and one only good, though a sale under the former would be void, yet it will not invalidate the sale under the good authority.” Jackson v. Roberts, 7 Wend. 83.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The defendant in error brought an action of ejectment for a lot in Natchez, which he had purchased as the property of the defendant at sheriff’s sale, which was made under sundry executions against the plaintiff in error.

The first objection to the title of the plaintiff below is, that the deed was not delivered until after it had been acknowledged, to wit, on the 15th of April, 1841, whereas the sale was made, and the deed dated on the 5th of April. This was an immaterial circumstance. Although delivery is essential to the validity of a deed, yet the delivery of a deed after this, related back to the time of sale. The sheriff sold by virtue of the judgments and executions, and the title passed by the sale. It is not essential to the validity of a deed, that it be actually delivered to the grantor ; it may be delivered to a third person for him; or if it be signed and sealed, and declared by the grantor, in the presence of the attesting witnesses, to be delivered, it is an effectual delivery, if there be nothing to qualify it. In this instance, the sheriff acknowledged before an officer, competent to take such acknowledgment, that he had signed, sealed, and delivered the deed on the day and year therein written, which was on the 5th of April. The deed was, therefore, properly admitted.

It appears, by the bill of exceptions, that the plaintiff below had the several judgments referred to in the sheriff’s deed, though they are not set out in the record. He also read the several writs of fieri facias, returnable to the May term, 1841, of the Adams circuit court, under which the lot was sold. To this course an objection was made, because the plaintiff did not introduce the intermediate executions. This was unnecessary. As against the defendant in execution, it is only necessary to introduce the judgment, and the process upon it under which the property was sold. Doe ex dem. Starke v. Gildart, 4 How. 267. The point here raised was expressly decided in Carson v. Huntington, 6 S. & M. 111, when the judgment and venditioni exponas were held sufficient, without the writ of fieri facias. We have no means of knowing whether the judgments sustained the executions or not, as they are not set out. We must presume they did, and if so, the intermediate executions are unnecessary.

When the court refused to require the plaintiif below to introduce the intermediate or prior executions, the defendant then offered to introduce them. They would have been proper evidence if title to the property could have been established by them, or if thereby it could have been made to appear that they had been satisfied, but they do not establish the one or the other. It is true, that a prior execution in favor of Briggs, Lacoste & Co. had been levied on property which had been sold, but the return does not show what that property was. It is also true, that two other executions, one in favor of Briggs, Lacoste & Co. issued 2d of November, 1838, and one in favor of the Agricultural Bank, issued 15th January, 1839, were levied on that same lot, but by the returns it appears, that it was not sold for want of time. This presented no impediment to a subsequent levy of other executions on the same property; it was consequently not error to exclude these executions and the returns on them, because they did not tend to establish a title in the defendant, or to defeat the plaintiff's right.

Amongst the multitude of executions introduced, it is possible that some may have been defective or even void, but it is conceded that some of them were good. If even one of them was good, it would have been sufficient for the plaintiff's purpose. The defects in the others could not vitiate his title. Pickett v. Planters Bank, 5 S. & M. 470. It does not seem, however, that the objection in the court below was predicated on any defect in the executions, but was urged because what are called the intermediate executions were not read.

It is also insisted, that the judgment must be reversed for want of proof of possession in the defendant. This objection cannot prevail. There is no bill of exceptions which sets out the evidence, nor does it appear that any such objection was made on the trial. We must, therefore, presume that the requisite proof of possession was made.

Judgment affirmed.  