
    John Doe ex dem. James M. Reynolds vs. John Ingersoll.
    Where three executions were levied on real and personal estate of the defendant therein, and the sale of the personal estate brought more than a sufficient sum to satisfy all three of the executions; but the sheriff who made the sale, appropriated part of the money to the payment of an execution against the same party, younger in date than the other three, and which had not been levied, the appropriation being made at the instance of the agent of the plaintiff in the younger execution ; and afterwards, under the three executions first levied, the sheriff sold the land, and it was bought by the agent of the plaintiff in the younger execution ; it was held, that the latter acquired no title to the land as against one claiming it also under a sheriff’s sale on a judgment against the same defendant. The three executions levied, were satisfied by the sale of the personalty ; the sheriff had no right to apply the proceeds to an execution not levied, even though older in date; and the sale of the land, under executions which were paid, to one having knowledge of that fact, was void, and conferred no title.
    Whether a sale under a satisfied execution is absolutely void, and confers no title on a bona fide purchaser or not, it is certainly void, and confers no title upon one who buys with notice.
    Where three executions had been levied on real and personal estate, and the sale of the latter produced a sufficient sum to satisfy them, but the sheriff, induced by the representations of the agent of the plaintiff in a younger execution, not levied against the same party, appropriated part of the proceeds of the sale of the personalty to this younger execution, and. after-wards sold the realty under the levy on the three executions to the plaintiff in the younger execution ; it was held, that the sale was void, being under paid executions to one who had knowledge of the fact; the notice to the agent being notice to the principal, in such case.
    Even if a bona fide purchaser without notice, under a satisfied execution, acquires any title by the purchase, his title does not relate back to the date of the judgment; he holds only from the date of his purchase, the lien of the judgment being extinguished by its satisfaction.
    A stay of execution, when binding, only postpones the lien of the judgment, so as to let in younger liens ; it does not destroy the binding force of the older judgment; where, therefore, there were four judgments against the same defendant, and a stay of execution was granted on the oldest, so as to give the others priority, and they were satisfied by a sale of property of the defendant under them, the oldest judgment remained the only lien on the property of the defendant, and was restored again to its priority; and a purchaser under it would hold in preference to a bond fide purchaser under the other executions, after their satisfaction.
    Where the marshal returned an execution, “stayed by plaintiff’s attorney,” in the absence of other proof, the attorney at law of record, of the plaintiff in the execution, will be presumed to be meant.
    An attorney at law has no right, without special authority to that effect, to destroy his client’s lien by a stay of execution ; and where an attorney at •law has stayed his client’s execution, and the marshal has so returned it, it will not be presumed that the attorney had special power to stay it; he who so maintains must show it by other proof.
    A judgment having been obtained in the United States circuit court for the southern district of Mississippi, an execution thereon to the November term, 1838, was returned, “ stayed by plaintiff’s attorney ; ” the plaintiff therein did not, for six months after the stay had expired, which was granted without his authority, issue a new execution ; it was held, that this delay in suing out execution, was not such evidence of fraud as would prejudice the lien of the judgment, especially as the plaintiff was a non-resident, and it did not appear when he first heard of the stay that had been given.
    Where an execution was returned by the marshal, to whom it was addressed, “ stayed by plaintiff’s-attorney,” and in an action of ejectment against the plaintiff, who had become a purchaser under a subsequent execution on his judgment, the jury found, in their special verdict, that the first execution was “ suspended by order of plaintiff’s attorney; ” it was held to be no impeachment of the marshal’s return, to decide that by “ plaintiff’s attorney,” in the return and verdict, was meant the attorney at law of record for the plaintiff; and that such attorney had no power, so far as appeared, to make such a stay.
    
      While it seems that the truth of the return of an officer upon an execution, cannot be collaterally questioned between the same parties, yet the legal effect of the return may be inquired into and determined.
    Where evidence, calculated to impeach an officer’s return in a collateral inquiry, is permitted without objection to go before the jury, and they find a special verdict accordingly, it will be too late after a judgment upon such verdict, and a writ of error to the high court, to object that such testimony was allowed.
    Where the plaintiff in an ejectment, claiming under a sheriff’s deed, is held to have no title to the locus in quo, by reason of his having purchased under a satisfied execution, with notice of the fact, he cannot object that the title of the defendant, also claiming under a sheriff’s sale on an execution against the same person that the plaintiff claimed under, is void from champerty; the defendant having acquired his title while the land in controversy was in the adverse possession of the plaintiff under his deed.
    It seems that where real and personal estate is levied on under several executions, and an amount is bid for the personal estate, sufficient to pay the principal and interest of the executions, yet leaving a portion of the costs unpaid, the land may be sold under them to pay the balance due.
    In error from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge.
    John Doe, on the demise of James R. Reynolds, sued John Ingersoll in ejectment, to recover a plantation 'containing fifteen hundred and twenty acres. There were two trials in the court below. The first at the November term, A. D. 1843, when, as appears from the bill of exceptions, the following facts in substance were exhibited. Both parties traced title to Marcus Pierce, who was the former owner.
    M. B. Hamer & Co., in the Yazoo circuit court, recovered a judgment on a forthcoming bond, forfeited 30th April, 1838, for $7885-56, against Camp P. Newell and said Marcus Pierce, on which there was due on the day of May, 1839, $6867-54. On the 26th of May, 1828, the Planters’ Bank, in Yazoo circuit court, recovered a judgment against James C. Hawley and said Marcus Pierce and others, for $7147-71, on which there was due on the of May, 1839, $7846-97.
    On the 29th of May, 1838, Briggs, Lacoste & Co. recovered a judgment against Camp P. Newell and said Marcus Pierce for $10,578-33, on which there was due on the day of May, 1839, «1113,431'54, in Yazoo circuit court. Executions issued on these three judgments, returnable to the May term, 1839, of the court.
    Those in favor of the Planters’ Bank, and Briggs, Lacoste & Co., were levied by the sheriff of Yazoo on the 1st of March, 1839, on a large amount of personal property, as appears from the indorsements on said executions, and also on the land in controversy. The execution in the case of M. B. Hamer & Co. was received by the sheriff on the 4th of March, 1839, and was levied on the same property.
    The personal property levied on, was sold in March and April, 1839, and produced the sum of $28,173. The land was after-wards sold on the 6th of May, 1839, to Levin R. Marshall, and the sheriff executed to him a deed, reciting the sale under the execution in the case of M. B. Hamer & Co. The deputy sheriff also executed a deed to Marshall for the land, reciting a sale under the execution in the case of the Planters’ Bank. Marshall conveyed the said land to Reynolds, the lessor of the plaintiff, before the commencement of the suit.
    Francis Illsley purchased the land at the sheriff’s sale, for and as the agent of Marshall. The sheriff, at the solicitation of Illsley, who was the agent of Briggs, Lacoste & Co., appropriated enough of the sales of the personal property to the execution of Briggs, Lacoste & Co. to pay it; and a further sum of $-, arising from the proceeds of sale of the personalty, was received by Illsley, as agent for Briggs, Lacoste & Co., from the sheriff, on account of another execution in favor of Briggs, Lacoste & Co. against Marcus Pierce and others, on which judgment was obtained in the Yazoo circuit court on the 18th of December, 1838, for $8145-46, but which was not levied on either the land or the personalty.
    Parham Buford, who, as sheriff, levied on and sold and conveyed the land in controversy, was acting as sheriff at the time under the following state of facts. He was elected sheriff on the 6th and 7th days of November, 1837, for the term of two years. His official bond is dated November 20th, 1837, was approved on the 21st of November, 1837, on which day he took the oath of office.
    
      On the third Monday in April, A. D. 1838, Robert P. Mayrant, for the use of William Mayrant, recovered a judgment in the United States circuit court for the southern district of Mississippi, against Marcus Pierce and his sureties, for the sum of $s 12,747-50, on a forfeited forthcoming bond, dated April 20th, 1838, and conditioned for the delivery of the property levied on, on the third Monday of April next ensuing.
    An execution issued on this judgment, returnable to November term, 1838, of the court. Before the return of the execution, Pierce paid on it to the marshal $>489-26 on the 8th November, 1838, and to the plaintiff, on the 12th of November, 1838, the sum of $7752; and the marshal, by his deputy, returned the execution, indorsing thereon, “ Suspended by the order of the plaintiff’s attorney.” Mayrant, the plaintiff, never authorized the suspension of the collection of his execution, and when informed that it had been done by his attorney, refused to sanction it. Illsley, who was the agent of L. R. Marshall, had in April, 1839, examined the records of the circuit court of the United States at Jackson, and found that the execution in the case of Mayrant against Pierce had been returned by the marshal, indorsed “Suspended by the order of the plaintiff’s attorney,” and as agent of L. R. Marshall, purchased at the sheriff’s sale with a knowledge of these facts.
    After the purchase by Marshall, an execution was issued on the 27th of May, 1839, on the judgment of Mayrant against Pierce, which was placed in the hands of the marshal, who, on the 26th of August, 1839, levied the same on the land, which, after being duly advertised, was sold by him on the 4th of November, 1839, and purchased by John Frink, who received a deed from the marshal therefor on the 12th of November, 1839; and on that day, Frink sold and conveyed it to Jacob S. Yerger, who, on the 4th of December, 1840, sold and conveyed it to Ingersoll; Ingersoll was in possession of the land at the time of suit. Frink purchased at the marshal’s sale for Yerger. After the purchase by Frink, the circuit court of the United States permitted the marshal to amend his return on the execution to November, 1838, by striking out the words “suspended by plaintiff’s attorney.”
    
      L. R. Marshall and J. M. Reynolds had been in possession of the land from November, 1839 until March, 1841, by their agent, who about that time left the premises, and some days after the defendant took possession.
    On this state of facts, the plaintiff asked the court for the following instructions.
    1. The court is requested to instruct the jury, that the judgment shown by the record from the federal court to have been rendered on the forfeited forthcoming bond, had effect as a judgment, and carried the lien of a judgment only from the third Monday of April, in the year 1839, and that it bound the land of Pierce only from that time.
    2. That the holding up of the execution of Mayrant by the marshal, for two successive terms of the court, (if in the opinion of the jury there was such holding up,) whether with or without the intentions of the plaintiff, postponed the lien of Mayrant’s judgment until it was afterwards re-issued and placed in the marshal’s hands and levied, as to subsequent judgment creditors of Pierce, and purchasers under them.
    3. That if the jury believe Frink purchased, as attorney for Yerger, and Yerger paid the marshal in unsettled accounts between him, Yerger, and the marshal, and not by payment of the amount in discharge of the execution of Mayrant, it was a private sale between the marshal and Yerger, and passed no title under the marshal’s sale under Mayrant’s execution.
    4. That if the jury believe from the evidence, the return “ Suspended by order of plaintiff’s attorney,” made on the execution of Robert P. Mayrant, use of William Mayrant against Marcus Pierce, returnable to the November term, 1838, of the circuit court of the United States for the southern district of Mississippi, although not made by the order of the plaintiff or his attorney, was known to them, and that said return was not stricken out until November 29th, 1839, the plaintiff and the attorney are bound by said return as fully as if the same was made by their order and direction.
    5. That if the jury believe that, at the time, the executions of M. B. Hamer & Co., the Planters’ Bank, and Briggs, Lacoste & Oo. against Camp P. Newell and Marcos Pierce and others, were levied on the lands of Pierce by the sheriff, the execution in favor of Mayrant, under which the defendant claims title, was suspended by the return of the marshal, by order of plaintiff’s attorney, at the November term, 1838, of the federal court, said return still remaining upon said execution in 1839, and that this fact was known to Levin R. Marshall or his agent, Francis Illsley, at the time he purchased at sheriff’s sale; and if they further believe from the evidence, that said Marshall was a bona fide purchaser, with this knowledge by his agent; then the law is for the plaintiff.
    6. If the jury believed, from the evidence, that the locus in quo was held by Marshall or Reynolds adversely under color of title, at the respective dates of the deeds and times of conveyance from Frink to Yerger, and from Yerger to Ingersoll, then said deeds are void in law, and carry no title.
    
      7. That the possession of Reynolds and Marshall, under the sheriff’s deed to L. R. Marshall, and Levin R. Marshall’s deed to Reynolds, was possession with color of title.
    To the refusal to give these instructions the plaintiff excepted.
    The defendant then moved for these instructions.
    1. If the jury believe, from the evidence, the forthcoming bond, taken in the case of Mayrant against Pierce and others, was dated in April, 1838, and the property levied on was, by the condition of the bond, to be delivered on the third Monday of April next ensuing, this meant in law the third Monday of April of the same year, and the forfeiture of the bond took effect as a judgment from that day; and if the jury believe that the defendant, or those under whom he claims, purchased under this judgment, it would give him the title against a purchaser of the same land, under a younger judgment against Pierce; and in such case they must find for the defendant, unless they further believe, from the evidence, the execution of the Mayrant judgment was stayed by the agreement or consent of Mayrant.
    2. That if the record of the judgment of the federal court, in the suit of Mayrant against Pierce and others, shows that the marshal made a return on the execution, that it was stayed by the order of plaintiff's attorney; and if the same record shows, that this return was, by the order of the court, stricken out, as having been made under mistake or for any other cause, that such record is no evidence whatever that the said return of the stay of executioq was made with authority of the plaintiff; or if it is proved to the jury, from other evidence in the cause, that the plaintiff himself did authorize the stay of the execution ; the lien of the judgment would be good as to other judgment creditors.
    3. That if the jury believe, from the evidence, there was a stay of the execution of Mayrant by the order of his attorney, without the order or consent of the said Mayrant, it is not binding on Mayrant, and will not postpone the security of his lien so as to let in younger judgment creditors; and in such a case, if they believe the defendant Ingersoll, or those under whom he claims, purchased the property in dispute under Mayrant’s judgment, they must find for the defendant.
    4. If the jury believe the possession of the premises in controversy, was adversely holden at the time of the marshal’s sale under Mayrant’s judgment, and at the time the marshal made the deed to Frink, that it passed Pierce’s title, notwithstanding such adverse possession, and that whether the subsequent deeds to Ingersoll were void or not, made no difference, as defendant, Ingersoll, had the right to rely upon the title of Frink.
    5. That if the jury believed, from the evidence, J. S. Yerger wished to purchase the land in controversy, and authorized the deputy marshal to get some one to purchase it for him, and that he would indemnify the purchaser; and if they further believed that Ferguson procured Frink to purchase it for Yerger; that in law it was the same as if said Yerger had been present and purchased it himself; that the marshal’s deed to Frink, and his to Yerger, passed Pierce’s title to the land, although Frink may not have paid the bid, but the same was paid or settled by Yerger.
    6. If the jury believe, from the testimony, that Mayrant’s execution was held up by the marshal or the clerk, without authority from the plaintiff, it is not binding on the plaintiff, and will not deprive his judgment of the lien given it by law. ,.
    
      7. If the jury believe, from the evidence, that Yerger paid or settled with the marshal, and if he sold to Ingersoll, whether he paid or not, or whether Yerger was paid or not, the title is in Frink, or those under whom he claims from the date of the judgment, under which the marshal sold.
    8. That even if the jury believe, from the evidence, that the execution first emanating on the forfeited forthcoming bond in the case of Mayrant, for the use of Mayrant against Marcus Pierce and security, was in fact suspended by the attorney of the real plaintiff in the case, but without the knowledge or consent of said plaintiff, and that said plaintiff objected to such attempted suspension of the execution immediately after it was made known to him; this would not at law be a release or discharge of the lien of the judgment, as to subsequent judgments or purchasers under them.
    9. The plaintiff must recover, if at all, by the strength of his own title, and not by the weakness of the defendants.
    All of these instructions were given by the court; the jury found a verdict for the plaintiff. The defendant moved for a new trial, which upon argument was granted; to which opinion of the court the plaintiff excepted, and filed his bill of exceptions, exhibiting substantially these facts:
    At the May term, 1845, the cause was again called for trial, when the jury found the following special verdict, to wit: “We, the jury, find that on the 30th of April, M. B. Hamer, & Co., recovered a judgment on a forfeited forthcoming bond, against Camp. P. Newell and Marcus Pierce, in the Yazoo circuit court, for the sum of $7885jyk, and on which, (after deducting a payment of $2000, made by defendant to plaintiffs) there was a balance due on the day of May, 1839, of $6S67T5il4ff. We also find that the Planters’ Bank, on the 26th day of May, 1838, in the same court recovered a judgment against James Hawley, Marcus Pierce, and others, for the sum of $7147/^, and on which there was due of principal, damages, interest, and costs, on the day of May, 1839, the sum of i§7846x2</o. We further find that Briggs, Lacoste & Co., on the 29th day of May, 1838, in the same court recovered a judgment against Camp P. Newell and Marcus Pierce for $10,578^^, and on which judgment there was due of principal, damages, interest, and costs on the day of May, 1839 the sum of $73,431X6ÜV We further find that execution issued on all of the foregoing judgments returnable to the May term, 1839, of said court, and that the executions in favor of the Planters’ Bank, and of Briggs, Lacoste & Co. were received by the sheriff of Yazoo county, on the 27th of February, 1839, and were by said sheriff levied on the 1st of March, 1839, on the locus in quo, together with a large amount of personal property, as appears by the indorsements on said executions. We further find that the execution in favor of M. B. Hamer & Co. was received by the same sheriff on the 4th of March, 1839, and levied on the same property as the others. We further find that the locus in quo, after having been duly advertised by said sheriff, was exposed to public sale on the 6th of May, 1839, and was bid off by Levin R. Marshall; that sheriff Buford executed to him a deed for said land, reciting the excution only, in the case of M. B. Hamer & Co.; that W. H. Kempton, as deputy sheriff, executed another deed for said Marshall to said land, reciting only the execution in the case of the Planters’ Bank. We further find, that said L. R. Marshall conveyed the locus in quo to the lessor of the plaintiff, before the commencement of the suit. We, the jury, further find, that Parham Buford, who, as sheriff, levied on, and sold, the locus in quo, was acting as sheriff at the time of said levy and sale, under the following state of facts: He was elected sheriff on the 6th and 7th days of November, 1837, was approved on the 21st day of November, 1837, on which day he took the oath of office. We,, the jury, further find, that the personal property levied on at the same time of the levy on the locus in quo, was sold by the sheriff previous to selling the locus in quo, and brought the sum of $28,173; that said personal property was sold in March and April, 1839. We, the jury, further find, that the sheriff, Buford, at the solicitation of Francis Ulsley, Jr., who was the agent of Briggs, Lacoste & Co., appropriated enough of the sale of said personal property, as would pay the execution in favor of Briggs, Lacoste & Co.; and that a further sum of $-was received by said Illsley, as agent for Briggs, Lacoste & Co., from said sheriff, and of the sales of said personal property, on account of another execution in favor of said Briggs, Lacoste & Co., against Marcus Pierce and others, on which judgment was obtained in the Yazoo circuit court on the 18th of December, 1838, for $8145-^. We further find, that the lessor of the plaintiff was in possession of the locus in quo from November, 1839, until- March, 1841. We further find, that Robert Mayrant, suing for the use of William Mayrant, recovered a judgment in the circuit court of the United States for the southern district of Mississippi, against Marcus Pierce and others, on a forfeited forthcoming bond, on the third Monday in April, 1838, for the sum of $12,7471%°5Tj on which an execution issued returnable to the November term, 1838, of said court. We further find, that before the return of said execution by the marshal, that defendant Pierce paid on account thereof to the marshal the sum of $489,^, on the 8th of November, 1838, and to the plaintiff on the 12th of November, 1838, the sum of $7750 ; and that the marshal, by his deputy, returned said execution, indorsing thereon, ‘ Suspended by the order of the plaintiff’s attorney.’ We further find, that S. M. Grayson was one of the attorneys of the plaintiff, Mayrant, at the time said execution was in the hands of the marshal. We further find, that May-rant, the plaintiff, never authorized the suspension of the collection of his execution, and when informed that it had been done by his attorney, refused to sanction it. We further find, that Illsley, who was the agent of Levin R. Marshall (the purchaser of the locus in quo at the sheriff’s sale,) had, in April, 1839, examined the records of the circuit court of the United States at Jackson, and found that the execution in favor of Mayrant, against Pierce, had been returned by the marshal, indorsed, 'Suspended by order of the plaintiff’s attorney,’ and that Illsley, as agent of L. R. Marshall, purchased at the sheriff’s sale the locus in quo, with a knowledge of these facts. We further find, that (upon the purchase of the locus in quo by S. R. Marshall) an execution was issued (to wit, on the 27th of May, 1839,) on the judgment of Mayrant against Pierce, which was placed in the hands of the marshal, who, on the 26th of August, 1839, levied the same on the locus in quo; that after being duly advertised, the same was sold by the said marshal on the 4th of November, 1839, and purchased by John D. Frink, who received a deed from the marshal therefor on the 12th day of November, 1839- We also find, that on the 12th day of November, 1839, Frink sold and conveyed the locus in quo to Jacob S. Yerger; and that on the 4th day of December, 1840, Jacob S. Yerger sold and conveyed the locus in quo to the defendant, John Ingersoll. We further find, that all of the above mentioned deeds were acknowledged and recorded in due time. We further find, that the defendant Ingersoll was in possession of the locus in quo at the time of the service of the declaration of ejectment in this cause. Now if from the foregoing state of facts the law be for the plaintiff, we find for the plaintiff; but if for the defendant, we find for the defendant.” Whereupon the court pronounced the law to be for the defendant, and gave judgment accordingly, and the plaintiff sued out this writ of error.
    
      Alexander Montgomery, for plaintiff in error.
    1. We insist that the marshal’s return is conclusive upon the parties, and although false or erroneous, no subsequent action on it can affect the rights of parties which accrued while the return existed, and was submitted to.
    The sheriff’s return shall not be contradicted by evidence hors de record, where the question arises incidentally, and especially in the same case. 3 Marsh. R. 393; Small v. Hodgen, 1 Lit. R. 16; Trigg v. Lewis’s Exec’r, 3 Lit. R. 129; 4 Monroe, 399; Goodall v. Stuart, 2 Hen. & Munf. 105; 6 Com. Dig. tit. Return, 9.
    The case of Trigg v. Lewis’s Exec’r, is almost parallel in its history, and we conceive fully so in principle. In that case, the sheriff returned that he had taken a bond from Adair, executed by Crow, his agent; the plaintiffs offer to show by parol that this return is no satisfaction of the judgment, because Crow had no authority to give the bond; that no bond was in truth given by Adair. The court held the sheriff’s return con-elusive, and that the plaintiff’s remedy was against him. 3 Lit. R. 129.
    Now the marshal’s return is as conclusive of the authority of an attorney to grant a stay, as that of a sheriff can be as to the authority of an agent to give a bond.
    Although ordinarily an attorney, to prosecute a suit, has, as such, no authority to control the process, yet he may have such authority conferred by private letters or verbally, and the marshal must be presumed to know what constitutes sufficient evidence of his powers, and that he makes himself liable, if no such powers exist.
    The return of the marshal, therefore, was not void, but might be avoided by the proper action of the parties. The acquiescence of the plaintiff in the marshal’s return, by suffering it to remain without objection for twelve months or more, might justly be considered a recognition of the authority to make it. 7 S. & M. 473, 474; 2 How. S. C. R. 258.
    2. The return of the marshal was not set aside as false or erroneous, but it seems leave was given him to amend after the sale to L. R. Marshall; and he amended by striking out part of his return. This certainly should not affect the rights of third persons intervening.
    The stay, as returned, was indefinite. The plaintiff, if dissatisfied, had only to order an aliás; yet the proof is that he was, or expressed himself dissatisfied, and took no step whatever to enforce his judgment until after the sheriff’s sale, under which plaintiff claims.
    Now every moment the execution of Mayrant’s judgment was suspended after he disavowed the authority to return it “ stayed,” was a suspension by his consent, and is as fatal to his pretensions, as if power had been conferred in writing-in the first instance.
    Even where an order to “stay” an execution was limited, and the sheriff held it up longer than the time limited, in consequence of a conversation with the plaintiff, which induced him to expect further instructions before proceeding; it was held to be fraudulent, as against a subsequent execution, delivered after the expiration of the time limited by the stay. Benjamin v. Smith, 4 Wend. R. 332.
    Now Mayrant’s execution was returnable to the November term, 1838, and returned suspended by order of plaintiff’s attorney. No farther execution issued until the 27th of May, 1839, full six months afterwards, and after the sheriff’s sale, under which the plaintiff claims. What excuse has Mayrant for not issuing execution between November term, 1838, and May term, 18391 The marshal’s return did not prevent him. It was not necessary to have it set aside to enable him to reissue.
    
      W. R. Miles, on same side.
    1. A large class of cases depend mainly upon legitimate construction of matter of fact, and when once fairly determined by a jury, should not be disturbed, unless for the most important reasons. To that class the present case, on its first trial, belonged. And if for no other reason, the original finding of the jury should be sustained upon the ground that the testimony warranted the verdict, although the court may be of opinion that the weight of testimony was against it.
    2. Independent of this, the first verdict should stand, for the following reasons.
    1st. Because the court erred in overruling the first instruction asked for by the plaintiff. The forthcoming bond, under the judgment rendered on which the defendant claims title, bears date the 20th of April, 1838, and is conditioned for the delivery of the property levied upon, “on the third Monday of April next ensuing.” Between the 20th of April, 1838, and the third Monday of April, 1838, ten days could not have intervened, so as to give the marshal time to advertise for sale. The language in the bond must, therefore, be understood to mean what it fairly and plainly imports. Can the words “ the third Monday of April next ensuing,” be fairly interpreted to mean any thing save the third Monday of next April 1 Are not the phrases “April next ensuing,” and next April, of precisely the same import 1 and if so, this bond was not forfeited until the third Monday of April, 1839, whilst the judgments under which the plaintiff claims title, were rendered in the spring of 1838. It is no answer to this to say, as was said by the court below, that the marshal could not have meant to take a bond conditioned for the delivery of property in twelve months. For the question is, not what the marshal intended to do, but what he did do. If he violated his duty and transcended the law, those who are injured by it must seek redress upon his bond.
    2d. Under a recent decision of this court, I may safely contend, that the acquiescence of the plaintiff and his attorney for two successive terms, in the return of “Suspended by order of plaintiff’s attorney,” would be equivalent to a positive order by the plaintiff to suspend. 7 S. & M. 473, 474. But more especially, as, during its suspension, the plaintiff acquired his title under another judgment. Plaintiff’s fourth instruction ought, therefore, to have been given.
    3d. The fifth instruction asked for by plaintiff, ought to have been granted. If the execution had been suspended by the plaintiff (Mayrant) in proper person, no one would doubt that his lien would have been postponed to those of other junior judgments. Does not a suspension hy the attorney of record produce the same result? The answer to this question must depend upon the nature and extent of an attorney’s power, as now defined by law. By the common law, I know the attorney had no such power. But the altered character of our country and its business relations, the union of counsel and attorney in the same person, and, the frequent emergencies arising where it becomes necessary for the collecting attorney to act as the agent for his client, have induced the courts in this country to enlarge the powers of attorneys; and we accordingly find it held in many cases of modern date, that the attorney’s power does not cease with the rendition of the judgment, but, on the contrary, his power and right to control the process of the court continues until the money is collected. 7 Cow. R. 739, 744; 22 Wend. R. 566, 568; 3 Hill’s, (N. Y.) R. 552, 555; 16 Mass. R. 73; 1 Greenl. R. 257; (Ib. 1 Maine R. 257;) 5 Peters, R. 99, 113.
    4th. The appropriation of the proceeds of the sale of personal property to the Briggs, Lacoste &. Co. execution, to the exclusion of the Hamer execution, was proper, because it was first levied and produced the money. 6 How. Miss. R. 530. The Hamer and Planters’ Bank judgments were not, therefore, satisfied, as is insisted, by sales of personal property, before the sale of the lands.
    The foregoing reasons and authorities are urged as reasons why judgment should have been rendered for the plaintiff on the special verdict. One additional fact stated in the special verdict is, that Buford, (the sheriff, who sold the land, did not give bond within the time prescribed by law, and it is insisted that, therefore, his acts are void. I need only say, in reply, that he was at least an officer de facto, and as such, his acts are binding on third parties. 2 S. C. R. 696; 7 Johns. R. 549; 9 lb. 135.
    
      Battaile, for defendant in error.
    1. That a sale under a judgment which is satisfied, will convey no title to a purchaser who has notice of its being satisfied, either from the record or otherwise, may be considered a settled doctrine. 6 How. 285; 3 lb. 69 ; 5 lb. 292; 7 Cow. 13; 4 lb. 417; 2 Hill, R. 566; 11 Wend. 422; 8 lb. 676; 4 Cow. 417; 2 Desaus. E. R. 140.
    The law (H. ¿6 H. 633) makes it the duty of the sheriff not to levy on land, if there be personal property. Of course, the personal property had first to be applied to the satisfaction of the executions. The proceeds of the sale of the personal property, it is clearly proven, satisfied these executions, lllsley bought the locus in quo subsequently, under these executions, as the agent for Marshall, from whom plaintiff claims. lllsley had examined the sheriff’s docket, and persuaded said sheriff to divert a part of the proceeds of said personal property from said executions, under which it was sold, to the satisfaction of another execution. But this misappropriation by the sheriff, cannot affect the consequence to the judgments under which the plaintiff claims, of a levy and sale under them of sufficient personal property to satisfy those judgments.
    
      It sufficiently appears that Illsley had notice, or at least sufficient to put him on inquiry, as to the satisfaction of these judgments. This was sufficient notice. And notice to the agent is notice to the principal. Story on Agency, 131, 132.
    This satisfaction also appeared from the record of those judgments and the executions on them.
    2. Buford was not sheriff, and therefore had no power to sell and convey the locus in quo. Because he did not give bond, and qualify within the time prescribed by law, all his acts were absolutely void. H. & H. Dig. 291, 292. Where a sheriff does not give bond within ten days after he is elected, the statute declares his election void. Ib. 291. And the statute further provides that, “If any sheriff elect shall presume to execute the office of sheriff before he shall have given bond and taken the oath of office, agreeably to the directions of this act, all such his acts and proceedings, done under color of office, shall be absolutely void.” H. & H. Dig. 292. I am aware that the acts of officers de facto are valid as between individuals, but not as against the state, as has been frequently decided. But this general principle will not hold against the peculiar, peremptory, and positive provisions of these statutes.
    3. The defendant must hold the locus in quo, because he bought under the oldest judgment. And although the doctrine, that the sale of land by a vendor .not in possession, is void, as being contrary to the English statute, (which was but a declaration of the common law,) against the selling of pretended titles, may render void all the conveyances through which the defendant claims, except the deed from the marshal to Frink; yet it cannot affect this deed, because that doctrine does not apply to judicial sales. 6 Wend. 213; 1 Leigh, 231, 248; 1 Dana, R. 211; 2 Ib. 325.
    And the defendant might set up the outstanding title in Frink. In ejectment the defendant may show an outstanding title in a third person, though he does not claim under it, and shows no title in himself. 5 J. R. 489; 1 Yer. 84; 6 Wend. 666 ; 9 Cow. 86; 2 Harr. & Johns. 112; 3 Lit. R. 36; 2 Tuck. Com. Book 3,p. 176; 5 Pick. 348. And this though the defendant be a mere intruder. 6 Peters, R. 302, 312; 9 Wheat. 516, 524.
    4. There is no proof that the execution was suspended by order of the attorney of plaintiff; the indorsement by the deputy marshal is no evidence of that fact; much less is there any proof that the plaintiff in the judgment authorized his attorney to suspend it. The indorsement did not postpone the lien of the judgment.
    Because, 1st. There is no evidence that the attorney made the indorsement. 2d. There is no evidence that the plaintiff in the judgment authorized the attorney to do it; and 3d. The attorney had no power to suspend the judgment without special authority from his client.
    The power of an attorney, under his general warrant of retainer, expires when final judgment is rendered, but the law prolongs the power for such time after judgment, as may be necessary to take certain steps which grow out of the main proceeding. This is to enable the attorney to have execution issued, and to do all things necessary to the collection and satisfaction of the judgment. 1 Com. Dig. Attorney, 757, 758; 2 Inst. 378 ; 1 M. & Payne, R. 513 ; 17 Eng. Com. Law R. 193 ; 10 J. R. 220-222; 1 Hill, 656; 21 Wend. 362; 5 Peters, R. 99 ; 8 J. R. 361; 3 J. J. Marsh. 508, 532; 2 lb. 184; 7 Cranch, 436 ; 5 Ran. 639; 1 Pick. 347; 2 Call, 498; 2 Petersdorf, Abr. 409; 4 Chand. Law Rep. 395; Walk. R. 431; 1 How. 577; 3 lb. 314; 7 lb. 582, 584; 1 S. & M. 248; 2 lb. 81, 514.
    5. A decision in 3 Hill’s (N. Y.) R. 552 - 554, is relied on by counsel for plaintiff; but that the court will see, was made under a statute of New York. (N. Y. Rev. Stat. 362, § 2.) And it will be seen, from the authorities above cited, that an attorney at law, under his general powers by retainer, has no power, unless it be expressly given, to hold up or suspend his client’s judgment.
    6. It is not necessary for a sheriff’s deed to recite the judgment and execution. 9 Cow. 182, 536.
    7. Yariance between execution and judgment is amendable before or after sale. 8 Wend. 676 ; 5 J. R. 100 ; 4 Wend. 462; 2 Dunlap, (N. Y.) Pr. 774; 2 Term R. 727.
    8. A defect in the proceedings on sheriff’s sale, which may be cured by amendment, does not affect the title under it. 1 Bailey, (S. O.) R. 611; 4 Wend. 462, 474; 18 J. R. 355 ; 7 Wend. 83, 87, 88; 2 J. R. 49.
    9. A purchaser at sheriff’s sale is affected with all the equities which bind the person whose interest he buys, and in fact is not within the rule which protects a purchaser without notice. Dudley v. Cole, 1 Dev. & Bat. Eq. R. 436.
    10. A sheriff’s deed for lands, vests the title in the purchaser from the time of sale. 3 Cow. 75; 15 J. R. 309 ; 3 Dev. R. 3; 1 Dev. & Bat. R. 586. And relates back to the time of the judgment. 9 Oow. 20.
    
      Fulton Anderson, on same side.
    1. Illsley, as agent of Marshall, knew of the prior liens of the judgments of Hamer & Co. and the Planters’ Bank; he knew that it was a misapplication of the funds arising from the sale of the personal property to appropriate them to the executions of Lacoste & Co.; they were sufficient to satisfy the older executions, and should have been so appropriated ; the older executions being satisfied by the levy and sale of the personal property, the subsequent sale under them was void, and Marshall, whose agent Illsley was in the purchase, knowing the misapplication, got no title. 2 Hill, R. 566. In this case, Illsley, the agent of the purchaser, had notice. 6 How. 285; 4 Cow. 417; 7 lb. 13 ; 8 Wend. 676 ; 11 lb. 422.
    2.' The forthcoming bond, given to the marshal, dated April 20, 1838, for the delivery of property on the third Monday of April ensuing, was forfeited on the third Monday of April, 1838. It was given on an execution, returnable to the May term, 1838, of the United States circuit court, issued 27th of December, 1837; the marshal’s return shows that it was given for the delivery of property on the third Monday of April, 1838, and its return forfeited on that day; the date of said bond being inconsistent with it, must be disregarded. It must have been given before the third Monday of April, because the marshal’s return shows that it was given for property to be delivered on that day.
    3. The last point being established, the defendant claiming title under the older execution has the best title, unless the execution, under which he claims, has lost its lien. If it should be admitted, that an attorney had power to stay an execution, and thus to release a security for his client, yet there is no evidence that there was such a stay. The bill of exceptions shows that Illsley stated that he saw the return of the marshal on the execution, returnable to November term, 1838, suspended by order of plaintiff’s attorney, but this is no evidence of that fact. If the marshal’s return itself were evidence of the stay, it being matter of record, could not be proved by Illsley; and if the records from the United States circuit court be examined, they will show that although such a return was made by the marshal on the execution, returnable to November term, 1838, yet the court permitted it to be stricken out as contrary to the fact; the whole record of evidence of that fact must be taken together, and so taken, it shows that there was not even an order by plaintiff’s attorney to stay execution.
    4. But an attorney has no right to take such steps after judgment, as will release a security, (and a lien is a security,) and such an order by an attorney will not affect his client, unless ratified by him. The testimony introduced by plaintiff on the trial, (see statement of Henry Vaughan, who was introduced for the purpose of showing that Grayson, the attorney for Mayrant, had ordered a stay of execution,) shows that when Mayrant supposed that such stay had been ordered, he refused to ratify it, and threatened to sue his attorney in case of any loss. See Union Bank of Tennessee v. Govan, 10 S. & M. 333, and authorities there cited.
    5. The fourth and fifth instructions, as well as the third instruction asked for the plaintiff, and overruled by the court, fall within the principle just lain down. There is not a particle of testimony to show any fraud in the sale of the marshal to Frink.
    
      
      George S. Yerger, also for defendant in error,
    made these points in an oral argument.
    1. As to the bond, it falls due on the third Monday of April ensuing, and is dated in April; the court is bound to know the term of holding court; ensuing, means third Monday ensuing. The court sat on the first Monday in May; judgment on the bond was entered on the third Monday of April, 1838. See Foster v. Frost, 4 Dev. R. 424; Gully v. Gully, 1 Hawks, 20.
    2. Insensible or contradictory words in the condition of the bond, must be rejected. The bond recites a levy, and that the property was permitted to remain in defendant’s hands until the day of sale, the third Monday in April. The bond was of course delivered before that time. The date of it is inconsistent, and must be rejected. ' Com. Dig. tit. Con.
    3. As to the stay of execution, there is no evidence. Admitting a return to be 'prima facie, it was subject to correction by the court; it has been corrected, because of the mistake; therefore, no evidence from the record, even if the marshal’s return was any evidence. Again, Mayrant gave no authority, but on the contrary, disaffirmed the attorney’s act.
    4. But if the attorney had stayed the execution, it was void; and when Illsley saw it, he saw also that it was void at law. 10 Johns. 220; 8 lb. 361; 3 Taunt. 485 ; 6 Binn. 419; 1 Hill, 656; 7 Cow. 739; 5 Pet. 99. Lien is but a security. 4 How. 130.
    5. The executions were satisfied on which the sale was made. This is a fraud. Illsley was agent, he knew of the sales; the knowledge of the agent was knowledge of the principal; Illsley was clearly guilty of fraud, while Ingersoll was an innocent purchaser.
    6. Frink purchased under the oldest judgment. Andrews v. Wilkes, 6 How. 554.
    7. Adverse possession does not apply to judicial sales. 1 Wend. 213.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

On the first trial of this case, the plaintiff had a verdict in his favor; but on motion of defendant it was set aside, and a new trial granted. To this the plaintiff excepted. On the second trial the defendant obtained a verdict, or rather a judgment on a special verdict, and the plaintiff brings up the case, and now insists that the court erred in granting the new trial, and also in rendering judgment in favor of the defendant on the special verdict.

It is believed that an investigation of the questions arising on the facts found by the jury will dispose of the case, and render it unnecessary to notice the questions raised by the exceptions taken to the granting of a new trial.

From the special verdict, we extract all the facts material to the inquiry.

The land in controversy, together with a large amount of personal property, was sold under executions which emanated on three different judgments; the first was rendered on the 30th of April; the second, the 26th of May; and the third, the 29th of May, 1838. The aggregate amount due on these judgments, at about the time of the sales in May, 1839, was $28,144. The executions were returnable to May term, 1839, of the circuit court of Yazoo county, and were levied in March; the personal property was sold in March and April for $28,173. Part of this sum was applied by the sheriff in satisfaction of a younger judgment in favor of Briggs, Lacoste & Co., without any levy under it having been made on the property. This appropriation was made on the solicitation of Ulsley, the agent of Briggs, Lacoste & Co., who also purchased the land as the agent of Marshall, the plaintiff’s vendor. This appropriation caused a deficit, and the land was sold, to make up that deficit, on the 6th of May, 1839. Marshall, through his agent Ulsley, became the purchaser, and soon afterwards sold to plaintiff, who went into possession, and so continued until 1841.

Mayrant recovered a judgment against the owner of this land, on the third Monday in April, 1838, in the circuit court of the United States, (which was of course a prior lien, as it was older than the others,) for the sum of $12,747. On this judgment execution issued, returnable to November term, 1838, on which about the sum of $8000 was paid, and the marshal returned the execution, “ Suspended by order of plaintiff’s attorney.” Mayrant never authorized or approved this return, but on the contrary, when informed of it, he expressed his disapprobation, and refused to ratify it. Illsley, the agent and purchaser for Marshall, had examined the records of the United States court in April, 1839, and saw this return, and purchased with a knowledge of the fact. After Marshall had purchased under the three executions, as above stated, to wit, on the 27th of May, 1839, execution issued on Mayrant’s judgment, which was received by the marshal on the 24th of August, and levied on the land, which was sold on the 4th of November, 1839, to Frink, who sold to Yerger on the 12th of November; andón the 4th of December, 1840, Yerger sold to defendant, who was in possession when this action was brought.

These facts raise three questions; first, Were the three executions under which Marshall purchased, satisfied by the sale of personal property; and if so, did Marshal acquire no title to the land ? Second, Was the return of the marshal so far binding on Mayrant as to postpone his prior lien in favor of the junior judgments'? And third, Was the sale by Frink to Yerger, and by Yerger to defendant, void for champerty, the plaintiff being then in possession under an adverse title ?

On the first question, the law, under the circumstances, is with the defendant. The levy was made on the land and personal property at the same time, but the latter was sold in March and April, and the former in May. The personalty sold for more than enough to satisfy all the executions. When an execution has been satisfied, its operation should cease. It has performed its office. But it seems that Briggs, Lacoste & Co. had a younger execution against the same party which had been levied. Their agent desired to have that satisfied out of the sales of the personal property, and the sheriff complied with his request, and made the appropriation. This caused a deficit, and made it necessary to sell the land. But it was a misapplication of the money. The law fixes the rights of parties, and the sheriff caunot change these rights. To the executions under which property is sold the proceeds belong. The sheriff cannot appropriate the money even to an older execution, unless it has been also levied. So far as the rights of the parties to the execution were concerned, the sheriff had no power to vary them, and the sale of a sufficient amount of property produced satisfaction. The case is precisely the same as though the sheriff had appropriated the money to his own use. Planters’ Bank v. Spencer, 3 S. & M. 305. The sale of the land was therefore made under executions which had been satisfied. Whether such a sale is absolutely void, and confers no title on a bona fide purchaser, is a question not free from difficulty, and we need not now decide it, being well satisfied that such sales are void, and confer no title upon one who buys with notice. 4 Cowen, 417; 7 Ib. 13; 8 Wend. 676. Marshall was a purchaser with notice. His agent, Ulsley, had procured the misapplication of part of the proceeds of the first sale. He seems to have been a vigilant actor in this whole transaction. Pie must have known that he was procuring part of the fund produced by the sale, to be applied to an improper purpose. The notice to the agent was notice to the principal.

But suppose the subsequent sale of the land was not actually void, then another question presents itself. Does the purchaser hold as from the date of the judgment 1 An execution which has been satisfied, ceases to be a lien; or rather the judgment lien is thereby extinguished. The lien is extinguished by the satisfaction, and the purchaser, if he can hold at all, can only hold from the date of his purchase. He cannot protect his title by a prior lien. This point was expressly decided in Banks v. Evans, 10 S. & M. 35. Marshall’s title, therefore, relates no further back than the date of his purchase, which was the 4th of November, 1839. If Mayrant’s judgment was then a subsisting lien, it must give a preference to the purchaser under it. This seems to obviate all the difficulty growing out of the stay of Mayrant’s execution. A valid and binding stay of execution only postpones the lien of the older judgment, so as to let in younger liens. It does not totally destroy the binding force of the older judgment. Then, even supposing that Mayrant’s lien was postponed, and the other judgments let in ; of course when the lien of the junior judgments was destroyed, Mayrant’s was again let in; there was nothing to contend against it. Mayrant’s judgment was always a lien, and when the preferred liens were destroyed, it became the only lien on the property. The preferred liens were discharged by the sale of the personalty; they then ceased to operate as liens. When Marshall bought the land it was subject to no lien, but the execution lien, except Mayrant’s judgment, and that judgment has priority.

But suppose this to be an incorrect view of the subject propounded by the first question, it then becomes necessary to determine the law on the second question, to wit, Was the return of the marshal so far binding on Mayrant, as to postpone his prior lien 1 It is a general rule, that a party can only be deprived of his lien by his act or consent. If Mayrant’s attorney had power to suspend the execution, his act is the act of his client. And here we are first to inquire, who was meant by the word “ attorney,” employed in the return'? We can understand it in no other light, than as referring to the attorney in the cause in court. So it seems to have been considered in the finding of the jury, and indeed the argument on both sides has proceeded on that supposition. An attorney has not the power to destroy his client’s lien, by a stay of execution. It requires a special authority to enable him to do that. Dunn v. Newman, 7 How. 582; Clark v. Kingsland, 1 S. & M. 248; Keller v. Scott, 2 Ib. 81; Garvin v. Lowry, 7 Ib. 24; 10 Johns. 220. But it is said he may have had special authority, and for that reason his act is 'prima facie valid. When we speak of an attorney at law, we can ascribe to him only such power as the law has given him. The office and duties of such an attorney are well defined, and the party who maintains that he was clothed with more enlarged powers by special authority, must show it. A special agent has his powers defined by the letter of appointment, but the powers of an attorney are defined by law, and it will be presumed that he possesses no greater power, until the contrary is shown. The stay or suspension of the execution by the attorney was not binding on Mayrant. True, it might have become so by his subsequent ratification, but Mayrant refused expressly to sanction the act of his attorney. He did not lose his lien then by the stay given by the attorney; did he do so by his failure to have execution issued 1 It is to be remarked, that the stay operated at most only on that execution, which was returnable to the November term, 1838. At that term then the stay expired, but Mayrant failed to have execution issued for six months, or until after the succeeding term of the court. We cannot say that this destroyed the lien. The effect of delay in suing out execution was very fully considered in the case of Foute v. Campbell, 7 How. 377, and the conclusion was, on the authorities cited, that mere delay, which did not amount to evidence of fraud, would not prejudice the lien of a judgment. The force of this objection is very much weakened by the fact, that Mayrant was a non-resident; and it does not appear when he first heard of the stay that had been given, or how long he permitted the execution to slumber, after he received the information.

Rut it is said the return of the marshal cannot be collaterally questioned, and it must therefore be taken as true that the execution was suspended by competent authority. The authorities cited prove nothing more than the general doctrine, that the return of an officer is, in general, conclusive on the parties to the record, when collaterally called in question. But we do not think this rule can have any’application in the present case. There is no effort to impeach the return. It is a mere question of law as to the effect of the fact certified by the return, taking it to be true. Nothing in the return is denied. The jury found that Mayrant’s execution was “suspended by order of plaintiff’s attorney.” What is the legal effect of such a suspension 1 that is the question. We say that Mayrant was not bound by it, because the attorney had no such power. The authorities cited, only prove that the truth of a return cannot be collaterally questioned; its legal effect is a very different thing. Besides, it is now too late to raise such a question. If there was an effort to impeach the return, the evidence by which it was sought to do so, should have been excluded from the jury. We are now considering of a special verdict, and must take every thing in it as true, and as having been properly found, as no exception was taken.

As to the third question, it may be sufficient to remark, that it might be entitled to great consideration, but the plaintiff is not in a condition to urge it. He is out of possession, and without title, and cannot claim to recover, because the tenant in possession holds by a void title.

On the. question of satisfaction by the sale of the personal property, it is necessary to add a few words. As the facts are presented by the verdict, it appears that the property brought about twenty-nine dollars more than the executions amounted to. It may be that the costs would have increased the amount of the executions above the amount of the sales, and that a balance would still have been due, which would have justified the subsequent sale of the land. But this is a question not presented by the verdict. We cannot assume that the amount due on the executions was greater than the jury have found it to be.

We have not thought it necessary to enter into a full inquiry as to the correctness of the first decision, in granting a new trial, since, if there was even error in that decision, it would not settle or change the rights of the parties. We have supposed that the case was brought up'on the special verdict, which is presumed to contain every fact, for the purpose of having the title finally settled.

Judgment affirmed.  