
    John G. Guignard, vs. John Glover.
    
      Execution renewed after the expiration of the year and day, by the consent of defendant, the judgment not having been revived by seire facias, is notirregular.
    
    
      Third persons cannot take advantage of irregularities.
    
    Trespass to try title. Both plaintiff and defendant derived their claims to the land in dispute through Needham DaVis. The plaintiff under a judgment,'at the suit of Ainsley Hall against Needham Davis, of the date 30th March, 1818; and the sheriff’s sale under fí. fa. for satisfaction of that judgment, of the third of June, 1822.
    The, defendant’s title rested on a conveyance from Need-ham Davis to John W. Wilkins, dated 19th September, 1818; a judgment at the suit of Benedict and Clark, against David Becket and John W. Wilkins, of the 13th of May, 1820; a judgment of E. L. Miller against Becket and Wilkins pf the 25th of November, 1819, and a sale under executions,- for satisfaction of these judgments, to the defendant, 1st Jauuary, 1821.
    It was admitted on the part of plaintiff that the defendant, Glover, attended on the day of sale, stated his claim and forhid the sale.
    As the conveyance from Davis to Wilkins was made after the lien of Hall’s judgment attached, the plaintiff’s title appeared to be preferable. But the defendant attempted to shew that the sale under Hall’s execution was void; first, because the jndgment was satisfied, and secondly, because the execution was irregular.
    To shew the judgment satisfied, he offered in evidence certain articles of agreement between William Hall, acting agent and attorney for the said Ainsley Hall, Needham Davis and Jacob and Isaac Barrett. This agreement recited that “ whereas the said William Hall, for the said Ainsley Hall, and in the name of the said Ainsley, now holds a judgment at law, for the sum of seven thousand four hundred and fifty dollars, against the said Needham Davis, which is now reduced to the sum of three thousand four hundred dollars; and whereas also the said Jacob Barrett and Isaac Barrett have since the obtaining of the said judgment for the sum above mentioned, purchased a house and lot in the town of Columbia from the said Needham Davi% wherein the said Needham lately lived, for and in consideration of the sum of eight thousand dollars; six thousand of which have been paid by the said Jacob and Isaac Barrett to the said Needham Davis, leaving the sum of two thousand dollars up-paid; and whereas also the said Ainsley now claims a right to he satisfied of his judgment as aforesaid from the said Need-ham by its lien on the said house and lot, and for that purpose has issued execution on said judgment, and the sheriff has advertised the house and lot for sale under said judgment. Now so it is to accommodate these different rights and claims between the aforesaid- parties and to set out more fully and distinctly these premises which have already been agreed and covenanted, and partly executed by these parties, this writing is now drawn up, viz. in the first place, on the part of the said Ainsley Hall, by the said William Hall, it is covenanted and agreed that the said house and lot be sold at sheriff’s sale under the aforesaid judgment; and in the second place it is agreed by the said Jacob and Isaac Barrett that they will bid at the said sale for the said house and lot the sum of two thousand dollars; the balance due by them • on the purchase of the same from the said Needham Davis, to. the said Needham: and the above first and second parts have already been executed.”
    
    From the recitals of tins agreement the defendant would have inferred that previous to its execution, the amount due on Hall’s judgment had been reduced to three thousand four hundred dollars. The agreement made provision for the payment of two thousand more; and a receipt indorsed shewed that that amount had been paid; and for the defendant it . was stated that he was prepared to shew payments to extinguish the balance of one thousand four hundred dollars.
    This testimony -was objected to on the part of the plaintiff, on the ground that it was incompetent for a third person to shew payment of a judgment to have been privately made, without satisfaction entered on the record, in order to impeach a sheriff’s sale under judgment and execution. The presiding .Judge ruled it tq be incompetent-.
    
      The irregularity of Hall’s execution relied on, was that it bad been issued after the expiration of a year and day, without having been renewed by scire facias. But on the execution was endorsed the written consent of the defendant, Davis, that it should so issue. The court decided that there was no irregularity.
    Verdict for plaintiff. The defendant appealed on the grounds of error in the circuit court, in having rejected the testimony offered, and sustaining the regularity of the execution.
    • Jlgalnst the motion, it was argued that from all the authorities it is clear that a purchaser at sheriff’s sale runs no risque but that of the defendant’s title and defects and irregularities apparent on the record. He is not to be affected by concealed irregularities in the proceedings, against which he could not guard himself by inspecting the record. 1 N. 8f M'C. 11; 2 J)]cCord, 390; 3 Caines, 71; 13 Johns. Re. 101. Purchaser at sheriff’s sale is protected if the execution be not void.. Tidd’s Prac. This execution was not void, for it was a justification to the sheriff who proceeded under it. Satisfaction of a judgment would make the execution void; but that is a technical term and includes the entry on the roll. Payment is not satisfaction. It is not pretended that payment would not conclude the plaintiff in attempting to enforce the judgment. When the payment has been made, defendant lias it always in his power to enforce the entry of satisfaction; and if he neglect to do so, it operates as a fraud off subsequent purchasers. A plaintiff who should stand by and see his property levied on and sold, to satisfy a judgment wbich he had paid, without giving notice, would be clearly estopped: a purchaser claiming uuderhim cannot bo in a better condition. It> is said that the defendant gave notice of his claim, which' was sufficient to put the plaintiff on enquiry. He gave notice that he claimed under a sale made subsequent to the judgment’s attaching on the property. It is not pretended that he gave notice of the judgments being satisfied. The result of enquiry, by examining the records, could only have been to satisfy plaintiff that his claim was illegal. -
    
      In fact however diere is no reason to believe that the judgment had been paid.. The agreement is ambiguous. It was by the payment which that provided for, which had already been, executed, that the judgment was reduced to three thousand four hundred dollars.
    If the fi. fa. had issued irregularly after the expiration of the year andday, defendant in this case could not take advantage of it. Bartlett, vs. Jackson, 6 Johns. 1 ScdTc. 273. But there was no irregularity’-. The consent of defendant was equivalent to renewal by sci. hi. The proceeding by sci. fa. was given byr statute, 13 lid. 1, St. 1. c. 45;, Pub. Laws. Jlpp. 3; which provides that execution shall not issue after the year and day, unless the defendant shall have been called on to-shew cause against it. It would seem very superfluous to call on the defendant to shew cause, when lie admits on the record that he has none to show. If there be stay of execution 'until after the expiration of the year and day, execution shall issue without scire facias. 2 Saund. 72, M. JY. 3.
    
      In Reply, was quoted 9 Johns-. 132.
   The opinion of the. court was delivered by

Mr. Justice Gantt..

To shew that the- title derived tinder Hall’s- judgment could not avail, it was attempted on the part of the defendant to shew that the-judgment had been- satisfied; and the objection now. raised is, that the evidence of the fact of payment was rejected by the court. The evidence thus alluded to, was an article of agreement between William Hall, as agent and attorney for A. Hall, Jacob and Isaac Barrett, and- Needham Davis, entered .into on the 4th April, 1820. By this agreement it appeared tli-at Jacob and Isaac Barrett had purchased of Need-ham Davis, a house and lot, subject to the lien of Hall’s judgment against Davis: they had agreed to give for the same eight thousand dollars, six of which they had paid, and William Hall, by the agreement thus entered into, covenanted, as agent for A. Hall, that the property thus sold should be exempt from the operation of the judgment of Ai Hall, on the Barrett’s paying the remaining two thousand dollars of the purchase money in part satisfaction of A. Hall’s judgment. There were other details in the articles of agreement which need ne notice at this time, but will be hereafter referred to, except that the agreement distinctly recognizes the existence of A. Hall’s judgment and the balance due tender it. The two thousand dollars thus agreed to b2 paid by the said Barretts to Hall,-was to be effected through the medium of the bank, they (the Barretts') to furnish a negotiable note to that amount for discount. Wm, Hall’s receipt is attached to the agreement, whereby lie acknowledges' the receipt of the negotiable note, agreeably to the •stipulation on the part of the Barretts; and on February 9th, 1821, the word “satisfied” is written .under this receipt, with the name of Ainsley Hall underneath it. It was contended on the trial, thatas this tripartite agreement was in reference to •the judgment of A. Hall, the word “ satisfied” found oil it, with A. Hall’s signature annexed, was evidence to shew that the judgment itself was fully satisfied.; but the court thought that such an interpretation was altogether inadmissible, regard being paid to the 'context of the agreement, and that i.t could refer only to one of tw'o things, cither that he, A. Iiail, was satisfied with what the agent had done in entering into the agreement, or that the negotiable note of two thousand dollars liad boca satisfied. That to extend the construction beyond •this, would he to make the articles of agreement embrace matter hot contemplated by the parties who entered into it. It was further said by the court, that although it might have been designed as a satisfaction of the balance due on the judgment, stiS the evidence of satisfaction ought to have been transferred to the record, and an exoneretur then duly entered, or a purchaser without notice of such payment would be protected.

The only notice given by the defendant on the day of sale, was the exhibition -of his title under Davis; but Davis could only sell subject to the lien of Hall’s judgment, • and of the existence ■of this judgment, open and unsatisfied, eyery man might and ought to have informed himself, by reference to the records ia the clerk’s office. There was not the slighest foundation however for the supposition that the judgment had been satisfied in full, from any tiling which appeared on the article of agree, meni. The entry must necessarily have had relation to the subject matter of the agreement, and could not by any correct rule of construction have been extended beyond it.

As this document therefore furnished no evidence whatever of satisfaction having been made lor the balance due on-the judgment of A. Hall, although it had been admissible-with that design, still under the circumstances of the case it could not have availed the party. The evidence was properly rejected by the court.

The second ground taken for a new trial is, because the sale of said lot was void, the execution-under which it was sold being without authority. The execution of A. Hall was taken out and lodged the day on which the judgment was entered up, to wit, on the 30th March, 1818; the execution had been several times renewed; a levy was made-on the 9 th May, 1822, andón the 3d June following,, the lot was sold. Now by an article in the agreement before alluded to, in reference to the balance due on the judgment of Hall, vs. Davis, it is stipulated on the part and behalf of the Barretts, that they shall become collateral security to Hall for the same, in consequence of his release of the lien created by his judgment, on the lot sold by Davis to the Barretts, and Davis, a party to this agreement,, stipulates to pay on every sixty days, -three hundred and fifty dollars, and on his failure to do so, then either Hall or the Bar-retts are invested with the right of proceeding immediately against the said Davis, on said judgment, for the balance dua thereon. Independently of this clause in the agreement,, on the trial it was admitted that Davis had given his assent to the enforcement of the execution under which the levy and sale was made. This double consent of Davis, first by his covenant-in the article of agreement and next as respected the execution itself, under which the property was sold, superceded, in' the opinion of the presiding judge, the necessity of a renewal of the execution by sci. fa. although a year and a day had elapsed before- the time of issuing the execution.

It appeared that the stay of execution in this Case had been at the instance of Davis himself, and where there is a stay of execution, it may issue after the year and a day, without sci. fa. 2d Sanders 72, E. note 3; Salk 322; the principle is not different where the execution has issued, and by an agreement with the defendant, the enforcement is delayed beyond a year and day, it may be acted upon without the necessity of a renewal by sci. fa.

But who could take advantage of it, admitting that it were irregular.. The case of Barkley, vs. Screven, 1 Nott & M' Cord, 408, clearly shews that third persons can make no objections of this kind, however irregular proceedings may be; and further, that in the sale of real property under execution, supported by a judgment, the purchaser at such sale is not required to look into the regularity of the proceedings; the seal of the-court (it is said) is evidence enough for him. I think it very clear that the supposed irregularity of the execution under which the lot was sold, cannot avail the defendant. The only object of a sci. fa. is to afford the defendant an opportunity of shewing that the judgment has been satisfied, and if the defendant admits the fact to be otherwise and consents that an execution may be enforced, why delay the plaintiff by an unmeaning formality.

From every view which I have been able to take of this ■case, 1st. the policy which seems to have prevailed of protecting purchasers at sheriff’s sales, who buy with a confidence that what is done in virtue of the law, will avail where due jjrecaution has been observed on the part of the purchaser: 2d. that there was no such evidence of 'his judgment having been satisfied as the purchaser was bound to regard, if indeed any satisfaction had been made which did not appear in evidence: 3d. that the delay in enforcing the execution under which the lot was sold was occasioned by the act of the defendant himself . and the irregularity (if any) cured by his after assent to its enforcement; withal.that the proceeding appears to have been fair I think there is nothing in the objections raised which can authorize a new trial. The motion is therefore refused.

Gregg, and Harper, for motion.

Chappell, and Desaussurc, contra.

Huger, Johnson, and JYott, Justices, concurred..

Colcock, Justice, dissent.  