
    Hardy Stuckey vs. A. G. Crosswell.
    
      Security for Costs — Judgment—Practice—Trespass to try Title — Sheriff's Deed, — Estoppel.
    Where a surety enters his name on the record as security for costs, he is liable as a party to the record, and upon judgment bein'g entered for defendant, the surety’s land may be sold under theji.fa. issued against him.
    It is not necessary, before execution issues against the surety, that a rule to show case why execution should not issue, should issue against him.
    Where the identity of the land sold by a sheriff under fi. fa. is the question, some indulgence must be allowed to the purchaser — the sheriff having to rely upon the defendant for a description, and his deed being often indefinite.
    Where the recitals in a sheriff’s deed show an entry of th eji.fa. in his office, and a regular levy and sale, they will not be controlled by dates inconsistent with them on they?, fa. and sheriff’s books.
    A sheriff’s deed estops the defendant in they?, fa., and in an action of trespass to try title by the purchaser against him, he cannot show title in another.
    BEFORE GLOVER, J„ AT DARLINGTON, EXTRA TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ The action was trespass to try titles. Before 1848, an action was pending in the Court of Common Pleas, between J. C. Ward, plaintiff^ and A. N. Stuckey, defendant; and the plaintiff having been required to give security for costs, A. Gr. Crosswell became his surety. The plaintiff failing in his action, a judgment was rendered in the casa of Ward vs. Stuclcey, for defendant’s costs, and a ft. fa. was entered in the sheriff’s office, November 4th, 1848. In January, 1849, the sheriff sold the land of the surety — Crosswell, the defendant in this case — to satisfy the fi.fa. for costs in the case of Ward 
      vs. Stuckey; and the plaintiff, Hardy Stuckey, b.ecame the purchaser, to whom the sheriff made titles, July 7th, 1851.
    "The identity of the land sold by the.sheriff, as the property of the defendant, depended upon the evidence of Mr. Wingate, who stated that he surveyed it, and that, a part of the time, the defendant was along; that he lived on the land in 1848, and lived there for some time. The neighbors pointed out the lines, and no dispute was made about them. Witness had no paper, but had before surveyed the adjoining tract of Lee. Defendant did not point out line, boundary, or tree, and he seemed cautious. His son and daughter live with him. He has two sons, Thomas E. and Adille L. He has negroes, horses, and other property. There must be 700 or 800 acres of the tract, with the marsh. When witness surveyed the land for Lee, the defendant was present. Wiley Kelley has a grant for this and other lands, dated since the sheriff’s deed. On this evidence, the question of location was submitted to the decision of the jury.
    "The third and fifth grounds of appeal can be understood only by the several endorsements on the fi.fa., some of which were made by Wingate, the sheriff’s deputy, and also the entries in the sheriff’s books. These must be printed with this report. Some of them did involve inconsistencies, arising from the dates, both on they?, fa. and on the sheriff’s books. But a levy and sale were endorsed, and the sheriff’s deed, it appeared to me, could not be void, because of these apparent inconsistencies.
    ^ “ I sustained an objection to the introduction of a deed offered in evidence by defendant, dated February 10th, 1851, from Burrell Shurley to A. G. Crosswell, (the defendant,] which, in consideration of good will and affection, and in consideration of one dollar, conveys this land in trust for said A. G. Crosswell’s two sons, &c.
    “ The plaintiff had a verdict.”
    The defendant appealed, and now renewed his motion for a nonsuit in this Court, on the ground that there was no proof of the existence of any judgment by which a lien was created, authorizing the issuing of an execution against the real estate of the defendant. No rule had issued against Crosswell, as should have been done before issuing execution.
    Failing in this motion, then the defendant moved for a new trial on the grounds:
    1. Because the land was not located by any legal evidence.
    2. Because the land was sold by the sheriff without advertisement and without levy.
    3. Because the return of “nulla boná,” of date 14th Dec., 1848, superseded the levy of Feb., 1848, and the judge should have so ruled, or should have left that as a question of fact for tbe jury.
    4. Because the defendant was not estopped from showing the character of his possession, to wit: that he held as the trustee of others.
    5.Because a levy cannot be made before execution is lodged with the sheriff. In this case the endorsement on the fi. fa. is “entered 4th Nov., 1848,” and so is the entry in Sheriff Eloyd’s execution book.
    Spain, Dargan, for appellant.
    Moses, contra.
    
      
      
         The entries are as follows :—
      Date of execution, 21st Oct., 1848. Entered 4th Nor., 1848.
      W: J. Floyd, Sheriff.
      Entered 17th April, 1849.
      J. H. Hu&aiijs, Sheriff.
      The defendant has no property whereon to levy this execution, 14th Dec., 1848. . - W. J. Floyd, Sheriff.
      Levied on defendant’s land, where he lives, Feb., 1848.
      W. J. Floyd, Sheriff.
      Sold the above levy the 1st Jan., 1849, to A. N. Stuckey, for one dollar, he being, at that price, the highest and last bidder. W. J. Floyd, S. D. D.
      Money claimed by plaintiff.
      Titles made to H. Stuckey, 1st July, 1851.
      8th March, 1852, received §120.
    
   The opinion of the Court was delivered by

Glover, J.

The motion for a nonsuit is renewed in this Court on two grounds, 1st. That there was no proof of a judgment against the defendant, as surety for costs, in the case of Ward vs. Stuckey, and 2d. That no rule was served upon him to show cause why an execution should not issue for the costs.

1. The 74th Hule of Court directs, that whenever the plaintiff shall be required to give security for costs, his surety shall acknowledge himself liable for the costs of the case, and shall consent that, if the plaintiff fail to recover, the defendant may have execution for his costs against him, (Miller’s Comp. 44.) The Act of 1839, adopting the form prescribed by the rule of Court directs that the clerk shall witness the signature of the surety and judge of the sufficiency of the security.” (11 Stat. 39, sec. 22.) When the surety acknowledges his liability on the record, he thereby becomes a party to it, with the plaintiff, anda judgment against the plaintiff for the costs, in the event of his failing to recover, is also a judgment against the surety, (Nolly vs. Squire & Kirkley, 1 Hill, 41.) The execution which he consents shall be issued against him must be predicated of any judgment against the plaintiff for costs that may be rendered on the record to which he has in that contingency, consented to become a party. Without a judgment there would be no evidence of any determination of the Court requiring execution, and the ft. fa. issued against the surety by his consent would be nugatory. The liability assumed by the surety is that of a party to a suit and does not require another action to enforce it. The judgment in the case of Ward vs. Stuckey, it is admitted, does not include the defendant Crosswell, and in that respect is defective; but as such defect is only in point of form, it may be amended like any other misprision of the clerk.

2. It is insisted that a rule should have been served upon the surety before the execution was issued. The language in which his consent is given waives any notice, and the practice recognized in Nolly vs. Squire & Kirkley, has been superseded by the 74th Rule of Court. To serve a rule upon a party to show cause why an execution should not issue when he had before consented, on the very contingency which has happened, that it shall issue, would be a nugatory act.

The several grounds in support of a new trial may be reduced to three: 1. That there was no satisfactory proof of the location of the land. 2. That the sheriff’s entries on the execution and in his book are inconsistent with the recitals in his deed to the plaintiff, and 3. That the conveyance of this land from Burrell Shurley to A. G. Cros'swell in trust for his sons, was admissible in evidence to show title in other persons.

1. Whether the evidence offered was sufficient to establish the identity of the land is answered by the verdict; and although questions of location are, in some degree, under the control of the Court, there was evidence which may have reasonably satisfied the jury that Wingate’s survey was correct, or that aided by his evidence, they were enabled to define the land purchased by the plaintiff. Besides, some indulgence must be extended to one claiming under a sheriff’s deed, which is seldom definite in description. The sheriff necessarily relies upon the defendant in execution for the means to describe the land, and he, generally, more readily contracts the debt than aids in its collection.

2. Where no fraud is imputed, a purchaser may safely rely upon the sheriff’s deed, reciting a compliance with those preliminary official duties which is requisite to give it effect. The performance of his duty in making a levy, advertising and selling under an execution, will generally be presumed from his deed conveying the property. Where the recitals in a sheriff’s deed show the entry of the ft. fa. in his office, and a regular levy and sale under it, such recitals will not be contradicted by dates inconsistent with them on the ft. fa. and in the sheriff’s books and thereby defeat his deed; (Turner vs. McCrea, 1 N. & McC. 11; Manning vs. Dove, 10 Rich. 395.)

3. In a sale of his land by virtue of an execution, the sheriff acts as the defendant’s agent to effect it, and the sheriff’s title is conclusive between the purchaser and the parties to the suit, and those claiming under them; (Toomer vs. Puckey, 1 Mill. 325.) The defendant cannot show title in a third person to defeat his own title, which by operation of the sheriff’s deed is in the plaintiff. If he be the tenant of another, his landlord should have entered himself as the defendant in the suit by rule of Court.

The motions for nonsuit and new trial are dismissed.

O’Neall, Wardlaw, Withers, Whitner, and Monro, JJ., concurred.

Motion dismissed.  