
    Mitchell v. Evans.
    An. execution issuing on a judgment which has not been regularly revived is not absolutely void, but only voidable.
    A purchaser at a sheriff’s sale, trader an execution which is only irregular, or voidable, will be protected.
    IN ERROR.
    This was an action of detinue brought by Elizabeth Evans against Lewis Mitchell, to recover a negro girl, a slave, of the al-ledged value of one thousand dollars.
    The plaintiff to show title in herself, read in evidence a bill of sale for the slave by H. S. Craig to G. Burnham, dated the 4th day of April, 1834. She then proved by one Lewis, that the slave was in her possession for several months, early in the year 1835. It was further proved by the sheriff of the county, that, under an execution in favor of Mitchell against G. Burnham, he sold said slave in August, 1836, and Mitchell became the purchaser for one hundred and eighty-five dollars. That he placed her in the possession of Mitchell, and saw her there some time afterwards. Plaintiff read in evidence the fieri facias under which this sale was in the usual form and above date in May, 1836, and purported to have been issued on a judgment in favor of Mitchell against said Burnham, recorded on the 21st day of May, 1834.
    At the request of the plaintiff, the court instructed the jury, that “the execution which issued on the 23d day of May, 1836, on a judgment obtained 21st day of May, 1834, was a nullity, and the proceedings and sale under that execution, null and void,” which instruction was assigned for error.
    Verdict below for the plaintiff, and writ of error to this court.
    Holt, for plaintiff in error.
    The testimony introduced by plaintiff, certainly established every fact, which the defendant could have desired to prove, viz: title to the slave, in Gabriel Burnham; judgment against him in favor of Mitchell; execution upon that judgment, levy and sale of the slave, and purchase of her by Mitchell, the defendant. In opposition to all this record evidence of title in him, plaintiff exhibits but an equivocal possession on her part, continuing a few months in 1835, which, was in fact, most obviously the possession of Burnham, whose kept mistress, plaintiff is proved to have been.
    The court in deciding the execution, under which the sale was made, to be a nullity, proceeded upon the hypothesis, that more than a year and a day had elapsed, after the rendition of the judgment, before an execution issued upon it, and that the. judgment not having been revived by scirie facias, the execution which emanated upon it was absolutely void. The court, however, erred manifestly both as to the law and the fact, involved in the charge as given. The execution it is true does not profess on its face to be an alias, but in the bill of costs appended to it and made by law a part of the execution, is included the clerk’s fee for issuing a previous fieri facias, showing thus conclusively, that the execution under which the slave was sold, was not, as the court supposed, the first that had issued upon the judgment. But even if it were the first execution which had been issued upon the judgment, the court set all the authorities at defiance, in pronouncing it a nullity. It was but irregular and voidable, not void. It could' not be assailed collaterally; and a sale made under it, must stand until set aside by some regular and direct proceeding. 16 John’s Rep. 537. 1 Cowen, 736. 2 Howard, 607-8. These adjudications place this question beyond debate, and must, we think, be decisive of the case.
    It is not pretended, that the execution under which Mitchell purchased, was ever quashed, or that the sale made by its authority, was ever impeached, much less vacated. That sale being in all respects regular, vested a perfect title to the slave Catharine, in Mitchell, the defendant in the action of detinue. For Gabriel Burnham, is proved by plaintiff herself, to have been the owner of Catharine, when the judgment was rendered againt him; that judgment continued a lien upon the slave until it was satisfied; and, as against this lien, every trausfer which Burnham may have made to plaintiff, with or without consideration, was void. Plaintiff, however, failed to show any conveyance of the slave by Burn-ham, to her; neither written or parol evidence of gift or sale, was given to the jury. Her right to recover, was rested solely upon the few months possession of the slave, enjoyed by her in 1835; a possession which she manifestly enjoyed as 'premium pudoris, and from which no implication of ownership could arise.
    N. D. Coleman, contra.
    
    The first assignment of error questions the court’s instructions for plaintiff below. Possession in plaintiff before and at the time of levying the execution under which Mitchell claims, is certainly sufficient to enable Evans to recover, unless a better claim than hers’ is made out by Mitchell.
    It is equally clear, that an execution which issued more than a year and a day after the rendition of the judgment on which it is founded, is a nullity. The judgment in the case of Mitchell v. Burnham was obtained 21st May, 1834. The execution under which the sale was made, and Mitchell claims, issued 23d May, 1836, more than two years after the judgment was rendered.
    There being no evidence that any other execution had issued •on that judgment, the one which issued 23d May, 1836, was null, and all proceedings under it void. Of course the sale conveyed no title to Mitchell.
    The fourth instruction asked for by defendant, Mitchell, questions the right of the plaintiff below to inquire into the title under which defendant claimed. If the plaintiff relied on her possession, and the defendant expected to defeat her recovery by showing a better title, surely it was lawful to show that the pretended title set up was unlawful.
    The grounds for a new trial embraced three points not observed in the instructions. One, that the verdict was against the law and the evidence. The other, that the damages were excessive. The third, surprise.
    As to the sufficiency of the evidence, we would remark, that the proof was clear to the point that Mrs. Evans held possession of the girl, claiming her early in 1835, and continued to hold possession, and was in possession at the time the girl was levied on by the sheriff, in August, 1836. It was clearly proved that the girl was delivered by the sheriff into the possession of Mitchell, after sale, in August, 1836 : that she was in Mitchell’s possession at the commencement of the suit. The finding of the jury was not, therefore, against the evidence, unless the law was against the plaintiff.
    As to the excessive damages, there was full proof that the girl was worth five or six hundred dollars.
    On the subject of surprise, none is made out according to law, and I presume assertion of counsel in their motion for a new trial, that they are surprised at the use made of their own evidence, by their opponents, is no cause for new trial.
   Mr. Justice Thottep. :

This was an action of detinue for a slave. It appears from the bill of exceptions, that the claim of Mitchell to the slave in controversy arose under a purchase by him, at a sale made by the sheriff, on an execution against one Burnham. The plaintiff in error derived title also under Burnham. On the trial, the court was requested to instruct the jury, that the execution under which Mitchell claimed was absolutely void, as it had been issued on a judgment rendered more than a year and a day, which had not been revived by scire facias. The court gave this instruction; and informed the jury, moreover, that Mitchell could acquire no title under that sale. The defendant below excepted.

This instruction was clearly erroneous. The execution was only voidable, but not void. The judgment was entirely regular ; and a purchaser at a sale under an execution issued upon it, which is merely irregular or voidable, cannot be prejudiced for that reason. The authorities are full and direct on this question. 2 Howard, 607. 16 John. Rep. 537.

There are several other questions in this case; but it is not deemed important to notice them, as they are subordinate to the one which has been considered,

For the error of the court below, in giving the instruction above, the judgment must be reversed, and a venire de novo awarded.  