
    George Mushback, late Sheriff of Sussex, vs. David Ryerson.
    A sheriff has no authority to sell real estate under a writ which has not been two months in his hands, and under which he has made no advertisement.
    A sheriff having authority to sell and raise money under one execution and no such authority under another, is bound to apply the moneys arising from such sale, to the former execution, and according to his authority.
    A sheriff must apply the money arising from a sale to the execution under which he sells; he cannot apply it to the discharge of previous liens.
    Whether a sheriff can sell under a junior execution, with the consent of all interested, that the money shall be applied to the payment of the prior execution. Quere.
    
    An application was made to the Court of Common Pleas of the county of Sussex, at the term of February, 1827, on behalf of David Ryerson, to amerce George Mushback, late sheriff of said county, for neglect of duty; and the following evidence was offered before the said court, as appeared by a. state of the case agreed on by the parties, viz :
    The said David Ryerson produced .before' the court, a notice of amercement, in the usual form, in the case of David Ryerson, plaintiff, and Patrick Oassady, defendant, which was read in evidence.
    The said' David Pxyerson further produced and read in evidence, a writ of fieri faeias de bonis et terris, issued out of the Inferior Court of Common Pleas of the county of Sussex, and returnable to the term of November, 1824, for the sum of $315.92 cents of debt, and 4 dollars of costs of suit, in a suit wherein David R,yerson was the plaintiff, and Patrick Cassady, defendant, together with a special deputation made thereon by the sheriff, and the levy and return to said writ.
    *347] *The said David Ryerson further offered and read in evidence a writ of venditioni exponas in the same case returnable to the term of May, 1825, together with the sheriff’s return thereto ; also a statement of the proceedings of the said sheriff filed pursuant to the statute on the 16th August, 1823, in the clerk’s office of Sussex county, and dated April 12th, 1825 ; and also the original articles or conditions of a sale made by the said sheriff of the lands and tenements, of the said Patrick Oassady on the 28th day of March, 1825.
    The said George Mushback then offered in evidence and read to the court a certain writ of fieri facias de bonis et terris in a case wherein Isaac V. Goursen, Esq., was plaintiff and Patrick Gassady and Stephen Roy were defendants, issued out of the Court of Common Pleas of the county of Sussex for the sum of $213.72 of damage, and costs, returnable to the term of February, 1824, with the levy of Vancleve Moore, then sheriff of the county of Sussex, thereon endorsed. Also a certain other writ called a writ of venditioni exponas post sci. fa. in the same case last mentioned, issue&out of the same court, returnable to the term of May, 1825, with the return thereto of George Mushback as sheriff. Also a letter from the said David Ryerson to the said George Mushback, dated Newton, 25th October, 1824. The said George Mushback then called John W. Hall as a witness, who being sworn, testified as follows :
    I was present at the sale of the land of Piitrick Oassady, at Newton, on the 28th March, 1825. David Ryerson was present, after reading the conditions of sale, at the top of which, both executions were stated, he mentioned to me that the course of selling was different from what he expected. He supposed the property would have been sold on his execution alone. He said ho wanted to understand how the sale would be, as that would make a difference in his bidding. Sheriff Mushback was present, I was acting-as his agent in selling the property. I heard no conversation between Sheriff Mushback and David Ryerson. I had advertised the property for the sale on Mr. Ryerson’s execution in the hands of George Mushback, sheriff. Mr. Eyerson, after hearing how the property was to be sold, bid $150 or $250 on the same, am not certain which, think it was $150. The sale was suspended for an hour, and Mr. Eyerson afterwards *348] withdrew his bid. After *the property was set up again, Mr. D. Eyerson bid again several times. He continued to bid until the property was near the amount it was sold for. Thinks his bid was the last but one, of this, however, I atn not certain. Notice was given and it was understood at the sale that the property would be sold on both executions. (Cross-examined.) Don’t know the property that was sold, perhaps 100 acres, or a little over. It was understood there were two mortgages on the property older than the judgments of Eyerson or Ooursen. Sheriff Moore did not advertise the property of Eoy at all; believe his farm sufficient to pay the amount of the Ooursen execution. Sheriff Moore died lltli November, 1824. He had advertised the property of Oassady twice before his death, as appears by the sheriff’s docket; last advertisement was for August term', 1824. The property was adjourned two or three times, and then stood on an adjournment at the time of the sheriff’s death. I was acting as his deputy, having been appointed in January or February preceding. The last adjournment in sheriff Moore’s lifetime was in October, and was at the direction of John Eorback, the subsequent purchaser, who I understood, had at that time acquired the right to the judgment of Ooursen by purchase. The property of Oassady, that is the land, was supposed to be worth about $800 clear of incumbrance. The property after being advertised on Eyersou’s execution, was adjourned from the 28th February to the 28th March, by direction of Mushback; do.n’t know whether or not this was under the direction or with the assent of Eyerson. I think I drew up the conditions of sale. Mr. Mushback directed me so to arrange it as to sell upon both executions, and he handed me the Ooursen execution. I had no deputation from Mr. Mushback to sell upon the Coursen execution. I was not his general deputy. Think Mr. Eoy bid several times, and it was mentioned and understood that if this property did not bring the amount of Coursen’s execution, he (Mr. Eoy) would have to make up the deficiency. Ezekiel Dennis was then offered by the said George Mushback and testified as follows : I was present at the sale in March, 1825, chief part of the time. Heard the conditions of sale read by Mr. Hall. David Eyerson was there and bid on the property a number of times. I think his first bid was 150 dollars. Eecoilect there was a suspension of the sale for an hour. During this time *Mr. Eyerson went out and before the sale was [*349 recommenced Mr. Eyerson retracted his bid. He after-wards commenced bidding again and continued bidding until near the amount it sold for. Eecollects but three bidders, John Eorback, Stephen Eoy and David Eyerson. Think that Eorback and Eyerson were the two last bidders. Eoy made two or three bids. I had some conversation with D. Eyerson at the time as to the mode of selling the property. It was discussed generally as to the way and mode in which the property was to be sold. It was stated that the older execution had the preference and it might as well be sold in that way as not. It was well understood by Eyerson. Did not hear him make any objections to its being sold in that way. He said he thought the property would have been sold on his execution alone, and it would make a difference in his bidding. When the sale was suspended and Mr. Eyerson went away, he spoke to me and requested, if the sale went on before he got back, I should bid it up for him over the amount of the older execution, so as to bring the property in his hands. Ho returned before the sale had recommenced and withdrew his former bid; after the sale was offered again he commenced bidding again, and continued until near the close of the sale. The property might have been worth at the time 800 dollars. It wms understood that there were two mortgages on it to a considerable amount. The said George Mushback then produced and read before the court an assignment of the judgment of Isaac V. Ooursen against Patrick Oassady and Stephen Boy to John Bor back, dated 22d of September, 1824; and then offered Isaac Y. Ooursen as a witness to prove that the original debt of said Ooursen was the debt of Oassady, and not the debt of Boy, and that Boy was only security, to which last-evidence the said David Byerson did object and except; and the court did then and there declare, that the said Isaac Y. Ooursen was an incompetent witness; to which opinion the said George Mushback did except.
    The court after hearing the evidence and the arguments of counsel did order and. adjudge that the said George Mushback be amerced in the' amount of the debt, interest and costs.
    It is agreed by the parties and their counsel, that the foregoing state of the case be annexed to the record in this *350] case, and be considered *as a part thereof; and if the court shall be of opinion that the matters offered to be proved by Isaac Y. Ooursen were improperly rejected by the Court of Common Pleas, that then the same shall be considered as proved, and shall form a part of this case, and if the court shall be of opinion that any of the facts proved by parol by the said George Mushback are not competent and proper, as evidence, then the same shall be rejected; and if upon the whole case the Supreme Court shall be of opinion that-the sheriff ought to be amerced, then the judgment of the Court of Common Pleas be in all things affirmed; otherwise that the same be reversed and for nothing holden.
    
      Scudder and I. H. Williamson for Mushback, the plaintiff in error,
    cited Rev. Laws 303, 304, 432, 433; 2 Esp. N. P. 242; 4 Dall. 177; 1 Saund. pl. & Ev. 56.
    
      Wood for R%yerson, defendant in error,
    cited Den. v. Moffat, 1 Halst. 229.
   The Oiiiee Justice delivered the opinion of the court.

An execution of fieri facias de bonis et ierris, in favor of David Ryorson, against Patrick Cassadv, was placed in the hands of George Mushback as sheriff of the county of Sussex, on the twenty-fifth day of October, 1824. For want of goods and chattels, he advertised, under that execution, the real estate of Oassady for sale on the 28th of February, 1825, and then adjourned to the 28th of the succeeding month. A short time before that day, and after the 22d day of February, a venditioni exponas post scire facias, in favor of Isaac V. Coursen against Patrick Oassady and Stephen Roy was delivered to Sheriff Mushback, whereby he was ordered to make sale of the real estate of the defendants levied on and left unsold by a former sheriff. Van eleve Moore, at his decease, by virtue of an execution whereby he had been commanded to raise a certain sum of damages and costs of the real estate whereof they were seized on the first day of December, 1823. This writ of vend, exponas was tested of February, returnable to May term, 1825. No advertisement was made under it by Sheriff Mushback. On the 28th of March, he made sale of the real estate of Oassady, and applied the moneys arising therefrom in satisfaction of the demands of Ooursen. In February term, 3827, he was amerced, at the instance of David Ryerson, in the amount *due on the execution in his favor; the [*351 sale being more than sufficient to discharge it, if first used for that purpose.

From this statement of the facts, it is manifest that sheriff Mushback had no authority to sell, on the 28th of March, the real estate of Oassady in order to raise money to satisfy the demand of Ooursen. The writ had been but a month in his hands; he had made no advertisement under it; he could therefore make no sale to satisfy it. Rev. Laws 432, sec. 9, 10, 12, 13. In The State against McDonald, Denn. 357, Chief Justice Kirkpatrick, delivering the opinion of the court, said, “ the sale of the estate, the proceeds of which are said to have been detained by the sheriff, was made on the 17th of January, 1792, only twenty-one days after the execution of Henry came into his hands. The sale therefore could not have been made upon this execution ; the law did not admit of it. It required a public advertisement of two months at least, to justify such sale.”

In the next place, it is clear that a sheriff having authority to sell and raise money under one execution, and no such authority under another, is bound to apply the moneys arising from such sale to the former execution, and according to his authority. It is moreover clear, that the sheriff could not of his own will, and by resolving to make sale under the Ooursen execution, authorize himself to do so, or to apply the money to the discharge of it. It is said he offered the premises for sale under both executions, mentioning both in his conditions of sale. But if so, he gained thereby no increase of power nor extension of authority. He could not assume on himself, or on his sale, existing liens, and undertake to discharge them. A sheriff must apply the money arising from a sale to the execution under which he sells. He cannot apply it to the discharge of previous liens. He has no authority to make such a stipulation in his terms of sale. The notice of the Ooursen execution was a warning to purchasers ; who take on themselves the hazard of the sufficiency of the authority of the sheriff and the regularity of his procedure. Whether the judgment in favor of Ooursen, was liable to be defeated by a sale under the subsequent execution, or would, notwithstanding, remain a lien on the premises, nothing which could then be done by the sheriff could in any wise enlarge, sustain or abridge .its operation. Ho notice or reservation by the sheriff could increase or diminish its strength. The *352] *purchaser as well as the sheriff must act at his peril. The position laid down by the counsel of the sheriff, that if he sells under a second execution, with a reservation of the rights of the first, the first will be entitled to the money, can be true only in a very qualified manner, and not in its broad terms, nor as a general rule, especially in relation to real estate. The cases cited, Hutchinson v. Johnson,1 T. R. 729, and Levy v. Wallis, 4 Dal. 167, do not maintain it, even as to personal estate. If by reserving the rights of the first execution at the sale, be meant merely, that the lien should not thereby be prejudiced, the reservation might be a matter of prudent caution and a convenient warning to purchasers; but if it be meant that the sheriff might thereby entitle himself to apply the money raised to pay the first excution, although he had not advertised nnder it, such power in the sheriff is wholly denied.

If then the sheriff had not authority, and could not, of his own volition, assume to himself authority, on the 28th of March, to sell for the purpose of paying the execution of Ooursen, let us now examine what was stated by the counsel of the plaintiff in certiorari, to be the real question in this case, whether a sheriff may not sell under a junior execution, with the consent of all interested, that the money shall be applied to the payment of the prior execution.

I feel disposed to entertain very strong doubts whether the sheriff can do so, even with the consent of all interested. In such departure from the regular course of proceeding, I anticipate many difficulties and risks aud much litigation. The deed from the sheriff to the purchaser, it if recites the execution of Ooursen, must be somewhat anomalous, either by silence as to the advertisement, or in its averments. But the question need not bo resolved, unless the fact, the consent of all interested, is first ascertained. So far from the consent of all, the case shews, in my apprehension, the consent of none. If the consent of those interested is to sustain the measure, this consent, it will be I presume readily conceded, should be in plain, express and unequivocal terms. Is such consent to be found ? Did the sheriff act on such consent ? Erom the evidence, it appears the sheriff set up the property for sale under both executions, or in other words, announced in the conditions his intention to sell by virtue of both, without consulting any person or obtaining therefor the approbation of any one. There is not the slightest evidence that the consent of the defendant, *353] *Patrick Cassady, was asked or obtained, or that he was present at the sale. Coursen did not attend; John Rorback, to whom his execution had been previously assigned, made no consent, unless by his presence, without forbidding the sale, or by his making a. bid. Did David Ryerson consent? Certainly not, previously to the opening of the vendue. For it is testified that, after reading the conditions, at the top of which both executions were stated, he said the course of selling was different from what he expected. He supposed the property would have been sold on his execution alone. He was not thereupon requested by the sheriff to give his assent to the manner of sale. The vendue proceeded. He offered a bid. He afterwards retracted it. Pie appears to have been in a state of doubt and uncertainty. The sale, being for a time suspended, he requested a person present, if the sale should proceed before his return, to bid for him over the amount of the elder execution so as to bring the property into his hands. The vendue being resumed, he bid again, and several times, and was perhaps the last bidder save the purchaser. In all these things, there is no acquiesence, much less consent on the part of David Ryerson, nor is any thing to be seen inconsistent with a determination to stand on and claim his legal rights. His omission to forbid the sale as the sheriff thought fit to make it, cannot operate to his prejudice. He was not called to interfere. He was, most probably, ignorant whether the proceeding of the sheriff was regular or otherwise. The sheriff and the purchaser acted on their own responsibility and at their peril. Nor do I see any ground for the inference of the plaintiff’s counsel, that a word from Ryerson would have caused the sale to be made in a different way. For the sheriff had resolved on his mode of sale, without, consulting Ryerson, and indicated no disposition to depart from it when he expressed his surprise. There is a document among the papers submitted to us, not particularly adverted to by the counsel on the argument, which serves very intelligibly to shew the ground on which the sheriff acted. I refer to the statement of the sale which he filed in the clerk’s office agreeably to the directions of the statute. He sets forth the sale of the land, and the appropriation of the money, and says “ the money raised as above was applied as above mentioned by me, because the levy upon which I sold contained in tho execution in favor of J. V. Ooursen was made by sheriff *Moore on the 22d of December, [*354 1823, and was therefore older than that of David Ryerson’s.” He makes no illusion to consent of the persons interested ; but sustains his application of the money singly on the fact .that tho execution of Ooursen was the eldest.

T am of opinion, therefore, that the sheriff mistook the proper application of the proceeds of the sale; having neither the authority of the law nor the assent of the parties; that the money ought to have been paid to David Ryerson ; and that the amercement was rightly ordered.

Judgment affirmed.  