
    Hobein & Wife, Respondents, vs. Drewell, Appellant.
    1. Hobein v. Murphy, ante, affirmed.
    
      Appeal from Franklin Circuit Court.
    Action by the assignees against the maker of a note negó - tiable under the statute, but not assigned for value.
    The defence was, that the note was given for the purchase money of land conveyed to the defendant by a deed containing a covenant of general warranty, which passed no title.
    A judgment was rendered against Hobein before a justice of the peace on the 30th of September, 1843, a transcript of which was filed in the Circuit Court, January 1st, 1844. On the 25th of August, 1847, after the lien of the judgment had expired, execution issued, under which the land was sold, and a sheriff’s deed executed to the purchaser. This was the title acquired by the defendant.
    On the 1st of February, 1847, Hobein executed a mortgage .of the land, which was afterwards foreclosed, the land sold under a special fi. fa. and a sheriff’s deed executed to Murphy, .the purchaser. This deed the defendant offered in evidence, to .show in Murphy a title superior to the one acquired by him; (but it was rejected, the court having previously, in a suit by Hobein against Murphy, set it aside as void for want of notice of the execution to Hobein, who resided in another county. After a judgment for the plaintiffs for the amount of the note, the defendant appealed.
    
      JV. Holmes, for appellant.
    
      Helafield, Jones and Stevenson for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The objection to a recovery on the note here sued upon is, that it was given for the price of land sold, and that the purchaser acquired no title, the vendor having none himself.

The objection to the title was, that the party had acquired it under an execution sale upon a general judgment against the owner, who had previously mortgaged it to another, and that the mortgage had been foreclosed and the land sold under a special fi.fa. and bought in by a stranger, in whose hands the title was still outstanding.

The reply to this was, that the sale was void for want of the notice of execution required by the act of the 12th March, 1849, and upon this ground, the court rejected the sheriff’s deed under the fi. fa. when offered by the defendant, having previously so decided at the same term, in a direct proceeding by Hobein against Murphy, instituted to set aside the deed for that cause.

This point, however, has been decided otherwise here at the present term, reversing the judgment of the Franklin Circuit Court in the case referred to, and the present judgment must therefore also be reversed, on account of the rejection of this deed, and the cause .remanded.

The other judges concurring, it is so ordered.  