
    Mary Swayze et al. vs. Doe ex dem. Thomas McCrossin.
    An affidavit of proof of publication in an attachment suit at law against an absconding debtor, which publication the law required to be made for four weeks successively, stated that “ the order of publication had been published in the county for four weeks successively, once every week, commencing on the 24th of April last, and ending on the 5th day of May, in the Woodville Republican : ” Held, that the statement in the affidavit, that the publication had been made for four weeks successively, was a compliance with the terms of the statute, and was as much as was required ; and that the subsequent part of the affidavit was mere surplusage, in all probability was a mistake, and could not vitiate the previous part, which was good and sufficient.
    Where a judgment has been rendered in an attachment suit at law against an absconding debtor, which is levied upon land, the proper process to issue, under the statutes, to enforce the judgment, is an execution commanding the sale of the specific land levied on ; yet if an ordinary fieri facias sue, general in its terms, and the specific land attached be. sold under it, the purchaser will, in the absence of proof that he had any notice of the irregularity in the process, acquire a good title.
    A deed made voluntarily, and without any pecuniary consideration, cannot stand as against a creditor whose debt was valid and subsisting at the date of the deed.
    
      The plaintiff in ejectment claimed under a deed of gift from Bernard MeCrossin, which described the lands sold as follows, viz.: “ 412 acres of all of a certain tract of land purchased by said Bernard from the United States, containing one thousand and twenty arpents, and known and distinguished as follows: Bounded on the north by lands of Mrs. Poole, on the south by lands of Walter Shropshire, on the west by lands of James McNeely, and on the east by public lands, being the same which was improved in part by Mr. Herring: ” Held, that this description was too vague to convey an interest in any. definite and particular portion of the tract; and a recovery in ejectment, therefore, under such deed, of a specific portion of of the land, would be erroneous; it should have been for an undivided part.'j
    In error from the circuit court of Wilkinson county; Hon. Thomas A. Willis, judge.
    Thomas MeCrossin, lessor of the plaintiff, instituted his action of ejectment, and the declaration was served on Angus Clark, tenant in possession.
    Clark, Mary Swayze, Elizabeth Middleton, Benjamin Kilgore and Catherine his wife, Lucinda Clark, David and John Mc-Neely, entered into the consent rule, were made parties defendants, and pleaded the general issue.
    The verdict and judgment were for the plaintiff below.
    The evidence was as follows, viz.:
    A patent dated the 1st of May, 1833, granting to Bernard MeCrossin lots No. one and two, in fractional section thirty-one, township three, range one, west, containing 154^ acres.
    A patent of same- date, granting to Bernard MeCrossin the south-east part of lot No. four, in fractional sectio’n twenty-four, township three, range one, west, containing 160 acres.
    The plaintiff below then read to the jury a deed of gift, executed by Bernard MeCrossin to Thomas MeCrossin, dated the 20th of December, 1826, of lands described as follows: “ Four hundred and twelve acres of all that tract of land purchased by me from the government of the United States, containing one thousand and twenty arpents, situated in the county and state aforesaid, bounded on the north by the lands of Mrs. Poole; on south by lands of Walter Shropshire; west, by lands of James McNeely; east, by public lands, being the same improved in part by Mr. Herring.”
    
      The plaintiff below also read in evidence a plat from the land office.
    The defendants below then read to the jury the proceedings and judgment in an attachment, at the suit of William McRory v. Bernard McCrossin, had at the May term, 1827, of Wilkinson circuit court. The attachment issued on the 6th of November, 1826,. and was levied by the sheriff on the one thousand and twenty arpents of land, described in the deed of gift on the 6tli of March, 1827; the judgment in these proceedings rendered on the ldth of May, 1827, was, by default, that the plaintiff recover $ 1629 of the defendant, and that the lands attached be sold, &c. The proof of publication is set out in the opinion of the‘eourt. On this judgment there issued the ordinary writ of fieri facias, which was levied on the lands attached, and, after due advertisement, they were sold to Benjamin Eckles. At the instance of the plaintiff below, the court refused to permit th & fieri facias to be read in evidence to the jury, and to this opinion defendants below excepted.
    John King then stated, that he knew the McCrossin land on the surface of the earth, but did not know the numbers of the land, or its divisions ; pointed out where he understood and believed the McCrossin land to be on the plat, and also the Shropshire land and John McNeely’s land. Being asked, on cross-examination, whether he could say to the jury that the land pointed out by him was the same as that described in the patent, he answered that he did not know the numbers. He further stated that defendants were in possession, at commencement of this suit, of the land pointed out as the McCrossin land.
    The witness Shropshire stated, that defendants were in possession of the land pointed out on the plat as the McCrossin land at commencement of suit; he did not know the numbers of the land; did not recollect the numbers of his own land, which is in the neighborhood.
    This being all the proof, the jury found a verdict for the lessor of the plaintiff, and a portion of the defendants, proceeding by summons and severance, sued out this writ of error.
    
      
      tSimrall, for plaintiff in error, insisted,
    1. That the deed to the lessor of the plaintiff was void for uncertainty. 14 Mass. 205; 8 Peters, 844; 3 How. 233; 13 Johns. 102.
    2. There was no proof of the identity of the land, or that the plaintiffs in error were in possession of that claimed.
    3. That the proceedings in attachment passed the title to the purchaser at the sale and those claiming under him.
    
      Gordon, for defendant in error, contended,
    1. That the deed to Thomas McCrossin was not void. He cited Hazlip v. Noland, 6 S. & M. 294; 4 Wheat. 444.
    2. That the judgment in attachment was void for want of notice. He cited 5 How. 661; 1 S. & M. 515; lb. 595; McComb v. Ellett, 8 lb. 519; tSaffarans v. Terry, 12 lb. 694.
    3. Even if the judgment were valid, the sale was void under the statutes, which Mr. Gordon reviewed.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of ejectment, commenced April 1, 1845, in the circuit court of Wilkinson county, for a tract of land. The plaintiff derives title from a deed of gift executed to him by Bernard McCrossin on the 12th of December, 1826, “ for four hundred and twelve acres of all of a certain tract of land purchased by said Bernard from the United States, containing one thousand and twenty arpents, and known and distinguished as follows: Bounded on the north by lands of Mrs. Poole, on the south by lands of Walter Shropshire, on the west by lands of James McNeely, and on the east by public lands, being the same which was improved in part by Mr. Herring.”

The defendants claim title under a judgment in attachment against Bernard McCrossin, commenced in November, 1826, and consummated by sale in June, 1827. The plaintiff insists that this sale was void, because the judgment was obtained without due publication of notice, and because the execution was not authorized by law.

The attachment was against the defendant as an absconding debtor. The affidavit of publication states that the order had been published in the county for four weeks successively, once every week, commencing on the 24th of April last, and ending on the 5th day of May, in the Woodville Republican. The statute requires publication to be made for four weeks successively. Hutch. Code, 804, § 16.

The first question is, whether this proof of publication was sufficient to authorize the rendition of the judgment. It has already been decided that a liberal construction should be placed upon the attachment law, so as to give effect to its provisions. Dandridge v. Stevens, 12 S. & M. 723. The affidavit that the publication had been made four weeks successively, was a compliance with the terms of the statute, and was as much as was required. If it had stopped at this point, it would have been entirely sufficient. It proceeds, however, to state that the advertisement was made from the 24th of April till the 5th of May; and this statement of dates shows that there could not have been four weeks between them. This makes a construction of the affidavit necessary. In the first place, it may be remarked that the latter part of the affidavit is surplusage, and ought not to be permitted to vitiate the previous part, which is good and sufficient. If the fact had been intentionally misstated, that there had been a publication for four weeks, nothing short of absolute stupidity would have put in the same affidavit the 'means of convicting the party of perjury, when there was no necessity for the statement. The probability, then, is, that there is a mistake in the affidavit itself of one of the dates, and this probability is increased, when it is observed that the order of publication was made on the 14th of March, allowing ample time for a full publication. We should not, therefore, feel justified in holding that the judgment against the defendant in the attachment was void.

Under the execution which issued upon this judgment, those under whom the defendants claim became the purchasers. This execution was an ordinary fieri facias. It is now insisted that the sale is invalid, because the execution should have issued only against the property attached.

The 23d section of the attachment law, as contained in How. <fc Hutch. Dig. 552, provides, that if any attachment as aforesaid, returnable to any court of record or before a justice of the peace, shall be returned executed, and the estate, real and personal, attached, shall not be replevied, or defence shall not be made as this act directs, the plaintiif shall be entitled to a judgment for his whole debt and costs, and may take execution thereupon; and all the estate, real and personal, attached and not replevied as aforesaid, shall be sold and disposed of, for and towards satisfaction of the plaintiffs judgment, in the same manner as property taken in execution upon a writ of fieri facias.” By the '30th section of the same act, it is provided, “ that if judgment by default shall be entered on any attachment against the estate of the defendant, in any court of this state, no execution shall issue thereon, except against the goods and chattels, lands and tenements, on which the attachment may have been served.”

As both these sections are parts of the same act, it is our duty to place such construction upon them as will make them harmonize, if there is any inconsistency in them. This- may be' done by holding the latter to operate as a restriction upon the extent of the former, and to declare more plainly that none but the lands and goods attached shall be sold under the execution, and to limit the execution itself to those specific portions of property. This would probably have been the construction of the first section, if it stood alone, but the second seems to have been adopted out of abundant caution, to exclude the possibility of doubt.

The judgment in the attachment in this case directs, “that the lands and tenements, attached as aforesaid, shall be sold and disposed of, for and towards satisfaction of the said judgment.” The execution was in the common form of fieri facias, directing the money to be made out of the lands and tenements, goods and chattels, of the defendant, without specifying those which had been attached. At the sale, one Benjamin Eckles, under whom the defendants claim, became the purchaser, and there is no proof that he had any notice of irregularity in the process or sale.

If, in point of fact, the lands attached and condemned to be sold were the lands really sold, we cannot but regard the sale as valid, though it took place under an execution general in its description of the property to be sold. There was a valid judgment, and if there were any defect in the execution, it was merely clerical and formal; for this, we should not be authorized to set aside the sale. See City of Natchez v. Minor, 10 S. & M. 246.

A question has been made as to the sufficiency of the description of the land contained in the deed under which the plaintiff claims. It is perhaps unnecessary to decide this. The defendants claim the whole land by virtue of the purchase. The debt upon which the judgment was rendered was antecedent to the deed of Bernard to Thomas McCrossin. That deed was voluntary and without pecuniary consideration. It cannot stand as against a creditor whose debt was valid and subsisting at the date of such deed. But we may add that we are strongly impressed with the belief, that the description in the deed, as already set out, is too vague to convey an interest in any certain portion of the tract. It refers to the boundaries of the whole one thousand and twenty arpents, not of thé four hundred ánd twelve acres; and there is nothing to show that this four hundred and twelve acres should be located in one part, rather than another, of the whole tract. That the description relates to the boundaries of the whole, and not merely the four hundred and twelve acres, is manifest from the fact that it does not call to be bounded in any part by the residue of the tract, — a call which would have been inevitable in carving a part out of the whole. We cannot see, therefore, how a right can be established, under this deed, to any definite and particular portion.

It is true that if, in a declaration in ejectment, a party claim the whole of a tract of land, he may recover an undivided part, if he establish title to such part. Van Alstyne v. Speaker, 13 Wend. 579. But that principle does not avail the plaintiff in this instance. He has recovered a specific part, and the question is, whether his deed authorizes such recovery. The witnesses, who were called to identify the land, were shown a survey of lands, on which patents issued in 1833 to Bernard McCrossin, and stated that the defendants were in possession of the lands pointed out to them as the McCrossin land. Yet they did not know the numbers of the land, or its divisions. This survey, and the evidence under it, related to the patents; but there was no evidence to show that these patents embraced the land in the deed under which the lessor claims. It was not necessary for the defendant to deraign his title in the case farther than he did, as his possession was a sufficient defence, until a paramount title to the same land was shown. There was not sufficient proof of identity to warrant the recovery.

For these reasons the judgment must be reversed, and a new trial awarded.

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