
    Hand & Huddleston vs. Pryor M. Grant, Sheriff, &c.
    Where a sheriff sold real estate under an execution, and instituted suit to recover the price of it, his return on the execution was held to be a sufficient memorandum in writing to take the case out of the statute of frauds.
    In an action by a sheriff to recover the price of real estate, sold by him under an execution, the return on the execution, whether made by himself or his deputy, is legitimate and proper evidence in support of the action.
    A return on an execution, made by a sheriff, in the following vyords, to wit: “ Levied this and other fi. fas. on lots four and five, in square one, south of Main street, Columbus, advertised and. sold the same, according'to law, 16 March, 1840, to Hand & Huddleston, for $3005,” is sufficiently certain in the description of the premises sold.
    In an action by a sheriff, to recover the price of real estate sold by him under an execution, a mere memorandum-book kept by him would be inadmissible as evidence: but if the court .should permit a memorandum to be read as evidence which was so unintelligible and immaterial in its character that it could not have operated against the defendants, its admission would not furnish a foundation for reversing a j udgment founded on a verdict supported by sufficient evidence.
    G. instituted suit for the price of real estate sold by him, as sheriff, to H. & H., and on the trial read in evidence the return on the execution, under which the sale was made, and proved the sale and purchase, and a tender of a deed, the jury found for G.; H. & H. moved for a new trial, and the court overruled the motion : Held, that the motion was very properly overruled.
    In error, from the circuit court of Lowndes county. Hon. Hendley S. Bennett, judge.
    This was an action of assumpsit, brought by Pryor M. Grant, sheriff of Lowndes county, against John H. bland and John Huddleston, to the April term, 1841, of the circuit court of Lowndes county. The declaration contained three counts; the first was founded on a memorandum, in writing, and the second and third were common counts. The defendants pleaded the general issue. On the trial the plaintiff offered in evidence his return on the several executions under which he acted, as the'memorandum, in writing, of the defendants’ purchase, the return on each execution being the same, and in these words, to wit: “ Levied this and other f. fas. on lots four and five, in square one, south of Main street, Columbus, advertised and sold, according to law, 16 March, 1840, to Hand and Huddleston, for $3005.” The levy proceeds to describe other property purchased by other persons, and that part of it is therefore not set out, and is signed “P. M. Grant, sheriff.” To this evidence the defendants objected, on the following grounds: “ 1. Because the said returns are by the plaintiff himself. 2. Because the sheriff’s return is not 'the memorandum, in writing, contemplated and required by the statute. 3. Because the plaintiff, in an action against the defendants for the purchase-money on a sale of land, cannot himself make the memorandum, in writing, to bind the defendants. 4. Because, although in an action by the plaintiff or defendant, in the execution under which the saléis made, against the purchaser, the sheriff’s memorandum might bind the purchaser, he being the agent of both parties, yet in an action by himself such memorandum cannot bind the defendant. 5. Because the said returns, as memorandums, in writing, as aforesaid, were not sufficiently certain and explicit in this, that the land is described therein merely as certain lots south of Main street, Columbus, without showing in what town or city they were, or specifying the Columbus referred to.” Which objections were overruled by the court, and the evidence read to the jury, to which the defendants excepted. The plaintiff then produced a book containing a memorandum made in pencil, by Joseph P. Waddle, who was the acting deputy, and clerk of the plaintiff at the time of the sale, in these words, to wit: “ James Jones’s lots, four and firm, Eagle Hotel, $3005. T. M. Tucker. Hand & Huddleston and offered to read the memorandum to the jury as evidence, to which the defendants objected, but the court overruled the objection, and permitted the memorandum to be read to the jury. And the defendants again excepted. The plaintiff then proved that he tendered to the defendants a deed to the premises sold, and demanded the purchase-money ; and here rested his case. The defendants, thereupon, proved that the name of P. M. Grant, signed to the several returns read to the jury, was not in the handwriting of the plaintiff, but in the handwriting of Joseph P. Waddle, and moved the court to rule out the several returns from the evidence before the jury, oh the ground that these were all void ; which motion the plaintiff resisted, and asked permission to prove that Joseph P. Waddle was, at the time of signing his name to the several returns, his acting deputy, and that the returns might be amended by adding the words. “ by Joseph P. Waddle, deputy sheriff.” The court overruled the motion of the defendants, and permitted the plaintiff to make the proof and amendment asked, to which the defendants also excepted. The jury found in favor of the plaintiff, and the defendants moved for a new trial, the court overruled their motion, and they filed another bill of exceptions, which shows, in addition to the foregoing facts, that the plaintiff proved on the trial that T. M. Tucker appeared at the sale, and bought the lots as the agent of the defendants.
    A final judgment being entered in favor of the plaintiff, the defendants removed the case to this court, by a writ of error.
    
      B. D. Howard, for plaintiff in error.
    1. The return of the officer, in this case, was improperly admitted. It appears that the land was bid off by the agent of the defendant. It was necessary to prove the agency, in order to lay a foundation for the introduction of the return, for the reason that his bid could not bind the defendants, without authority.
    2. The memorandum book of the sheriff was improperly admitted in evidence. It was a mere private entry. Salmon v. Ranee, 3 Serg. & Rawle, 314.
    3. It would be contrary to all principle, to permit the sheriff to introduce his return as evidence to charge the purchaser, when the sheriff himself was a party to the record, suing for the purchase-money. He then ceases to be an agent for both parties. It has been decided, that an auctioneer cannot himself bring the action, and make his own memorandum evidence to take the case out of the statute of frauds. Farebrother v. Simmons, 5 Barn. &. Aid. 333. “ No title will pass to a purchaser of real estate, under a sheriff’s sale, without a deed or note, in writing.” Simmonds v. Catlin, 2 Caines R. 61; Jackson v. Catlin, 2 T. R. 248; 8 Ibid. 416.
    In this case the note in the memorandum book of the deputy was not evidence, because it was a mere private entry, and, in order to take the case out of the statute of frauds, it'should state the amount of the purchase, or the sum bid. Kaine v. Old, 2B.&C. 627; Ibid. 947; Elmore v. Kingscote, 5 B. & C. 583.
    The return of the sheriff could not be a sufficient memorandum to take the case out of the statute, because it does not purport to have been made at the time, either by the sheriff or his deputy. It appears to have been drawn up subsequently, and although the court may not have erred in allowing an amendment of the return, such return could not be so amended as to constitute such a- memorandum as the statute of frauds requires.
    4. The levy upon the land was void for want of sufficient certainty. It describes lots in a town, by the numbers, without referring to any surety, or mentioning in what county or state the town is located.
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

The defendant in error, as sheriff of Lowndes county, instituted this suit to recover the price of two lots, which he had sold under sundry executions, and which were bid off by the plaintiffs in error, through an agent, at the sum of $3005. The declaration contains three counts, one on a memorandum in writing, and two common counts, to which the defendants below pleaded non assumpsit. To support his action, the sheriff offered in evidence his returns on the executions, showing, the levy and sale to the plaintiffs in error, after advertisement, for the sum of $3005. He also proved that he had executed and tendered a deed. The returns were objected to as not being a sufficient memorandum, in writing, to charge the plaintiffs in error ; and also because the returns were not sufficiently certain in the description of the lots.

It seems to have been taken for granted by both parties, that a sale of real estate by a sheriff, is within the statute of frauds and perjuries. On this point the case does not call for an expression of opinion, further than to say that the return must be regarded as a sufficient memorandum. Against the admissibility of the evidence it is contended that a sale by a sheriff is like a sale by an auctioneer, whose - written memorandum, as the agent of both parties, is admissible as evidence, except in actions brought by the auctioneer, in which it is not admissible. The character of a sheriff’s return is very different from the memorandum of sale made by an auctioneer. The sheriff is a sworn officer of the law, whose official duty is defined by law, and a presumption always arises that an officer who is required to do a particular thing, has discharged' his duty faithfully, unless the contrary be shown. The law attaches credit to all his official acts, performed in the discharge of his duty. Hence it is, that when a sheriff, in his return, confines himself within the line of his official duty, his return is often admissible. as evidence between third parties; is always conclusive evidence between the parties to the record, and generally conclusive as against himself, provided the process be such as by law he is bound to return. Notes to Phillips on Evidence, 1083. On this principle the return of a sheriff is often evidence for him, as well as against him. If by his return he has subjected himself to an action,, such return should be evidence to enable him to sustain an action. The precise point now before us, arose in the case of Hyskill v. Gwin, 7 Serg. & Rawle, 369. The sheriff brought an action to recover the price of a tract of land sold by him under execution, and relied upon his return on the execution as evidence to support the action, and it was held to be prima facie evidence for that purpose. The same question was decided by the supreme court of Tennessee, in the same way. Nichol v. Riddle, 5 Yerger, 63. In a recent decision of this court, the same doctrine was recognized. Adams v. Griffin, 3 S. & M. 556. The court, then, was right in allowing the return to be read to the jury.

An objection was also taken to the return, because it is not sufficiently certain in the description of the premises. In the levy the sheriff has described the property, as “lots four and five, in square one, south of Main street, Columbus.” And the return proceeds, “ advertised and sold, according to law, 16 March, 1840, to Hand & Huddleston, for {$3005.” The declaration avers that the sale was made by the plaintiff below, as sheriff, at the door of the court-house of Lowndes county ? in Columbus, and that the lots sold were situated in said town of Columbus. It is a sufficient description of town lots, to give the number of the lot, and the number of the square in which it is situated, as designated in the survey or plat of the town. These lots were described by their appropriate numbers, and the number of the square in which they were situated, and also by the street. Assuming that this description was made with reference to the survey of the town, it was sufficient. That it was so made there is no room to doubt, as in that way only can we account for their numbers, and the number of the square in which they were situated.

The defendants also objected to the return, because it was not ip the handwriting of Grant, and thereupon’evidence was introduced, that the return was made by a deputy sheriff. As the sheriff is bound by the acts of his deputy, so he must be entitled to the benefit resulting from them. A return by a deputy, is equivalent to a return by the sheriff. If anything, the return by a deputy is less objectionable than the return by the sheriff, when the latter is plaintiff. It seems that during the progress of the trial, and after the defendants had introduced proof that the signature to the return was not in the handwriting of Grant, a memorandum book, kept by the deputy who sold the property, was introduced, containing a memorandum, in pencil mark. If the deputy is to be regarded as the mere auctioneer, his memorandum would be admissible. But ■the truth is, the memorandum is unintelligible, and so immaterial in its character, ‘that it cannot furnish a foundation for reversing a judgment founded on a verdict supported by sufficient evidence. A mere memorandum book, kept by the sheriff, would be inadmissible in such an action as this. But it is impossible to perceive how a memorandum so vague, uncertain, and obscure as this was, could have operated against the defendant.

A bill of exceptions was taken to the decision of the court, in overruling a motion for a new trial, from which, in addition to the foregoing facts, it appears that the sale was proven, and the purchase by the defendants, through their agent, and that a deed was tendered. There was no ground for a new trial, and the motion was properly overruled.

The judgment must be affirmed.  