
    *Lessee of Bisbee v. Harvey Hall.
    On injunction to stay execution after levy on chattels, sheriff bound to restore chattels levied on to the owner.
    Where sheriff sells land on execution, and purchaser refuses to pay money, the sheriff is not bound to make himself liable, and sue purchaser.
    Before the law of 1824, assignment of a lease tested by one witness was good.
    Party putting a witness upon his voir dire as to interest, can not afterward except to him.
    Leases between individuals for ninety-nine years may be sold in execution as chattels.
    This cause was adjourned from Hamilton county, and came before the court upon a motion for a new trial, made by the defendant.
    On the trial, the plaintiff, to deduce title to himself from Adam Moore, made when both parties claimed, gave in evidence a lease from A. Moore to Joseph B. Robinson, for ninety-nine years, reserving a yearly rent, with clauses of' re-entry for non-payment of the rent; with an assignment, indorsed on the back, from Robinson to T. Levinsworth, attested by one witness only. A judgment in favor of Ethan Stone, for the use of the Bank of Cincinnati, against H. Flint, David Thatcher, Seth M. Levinsworth, and James H. Looker, for two thousand one hundred and thirty-five dollars and forty-three cents, rendered at the May term, 1816, and connected with this a ft. fa. et. lev. fa. execution to November term, 1816, directed to Hosbrook, then sheriff, but he having gone out of office, the writ came into the hands of the coroner, who makes the following return: “ I have levied on a farm as the property of Hezekiah Flint, lying near Mill creek, and about two miles from its mouth, containing eighty acres, or thereabouts, binding on the north by Thomas Graham, on the east by land owned by David E, Wade and the heirs of William Betts, on the south by the land owned by the heirs of Israel Ludlow, and on the west by Jacob Bur-net and-Coleman ; it being the whole of said farm, claimed and owned by said Flint. November 22, 1816. Wm. Butler, coroner.’'
    A venditioni exponas to March term, 1817, which is returned by the coroner, indorsed “ March 29, 1817 : The within described farm, was bid off to Robert Boal, as agent for John H. Piatt, and the articles of sale not being complied with, the property remains on hand for want of buyers.”
    At the return term of the last writ, an entry was made oh the minutes of the common pleas (and was in evidence) in the following words: “ Ethan Stone, for the use, etc. v. Hezekiah Flint, and others. On motion, by W. Corry and I. G-. Burnet, to set aside execution; motion granted, and execution set aside in this cause, March 27, 1817.”
    *A fi. fa. et lev. fa. to July term, 1817, which was returned by the sheriff indorsed in the following words : “ Stayed by a writ of injunction after a levy had been made on personal property to wit, a small stock of merchandise, the right to which was claimed by Samuel P. Anthony, which was tried by ajury of five freeholders (naming them), who adjudged the right of said property to be in, David Thatcher; the said property was advertised for sale, and before sale redelivered to the within-named D. Thatcher.”
    An alias fi. fa. et lev. fa. to September term, 1819, returned indorsed as follows: “August 4, 1819, levied on part of lot No. 167, at the corner of Walnut and Fifth streets, being fifty feet in front on Walnut street, and one hundred feet deep on Fifth street, with the improvements thereon. The right and title of Seth M. Levinsworth is intended to be taken, which is a lease for ninety-nine years, subject to a ground rent of one hundred and fifty dollars per annum. Not sold for want of bidders.”
    A venditioni exponas to December term, 1819, returned indorsed as follows': “ November 3,1819. I have this day offered the within property for sale, at outcry, or auction, and sold it to Samuel R. Allen for the sum of one thousand and fifty dollars, which money has not been received, the said-refusing to comply with the terms of sale.”
    An alias venditioni exponas to April term, 1820, returned indorsed: as follows : “ April 4, 1820. I have this day sold the within described property, at public auction, to Ira White, for the sum of one hundred and seventy dollars, no person bidding more.”
    The plaintiff then gave in evidence a deed from Richard Ayres,, sheriff, to Ira White, dated May 16, 1820, for the property in question. Also, a'deed from White to Bisbee, the lessor of plaintiff,, dated December 25, 1824, containing a covenant to warrant and defend the premises against all persons claiming under him.
    The plaintiff having closed his testimony, the defendant moved the court to overrule it, as insufficient to show title in his lessor. This motion the court refused to sustain. The defendant then gave in evidence a lease from Adam Moore, for the same premises, for ninety-nine years, dated January, 1825; together with proof that Adam Moore had *duly entered for the non-payment of rent, and enforced the forfeiture. To rebut which proof, the plaintiff offered in evidence Ira White, the grantor to their lessor. The defendant objected, but the court overruled the objection.
    The defendant then caused Ira White to be sworn on his voir dire, and again objected to his competence, and the motion was again overruled, and White examined. The jury found a verdict for the plaintiff, and the defendant moved for a new trial, on the grounds that the court erred: 1. In not overruling the evidence offered by the plaintiff. . 2. That the court erred in admitting Ira White as a witness. 3. That the verdict was against evidence.
    Fox, in support of the motion:
    We insist that a new trial ought to be granted, because the plaintiff showed no title in himself. 1. Because it appeared in evidence that there was a levy made on real estate in 1816, which levy had not been disposed of at the time of the levy and sale of the property in dispute. This point, we contend, is decided by this court, in the case of Arnold v. Fuller’s heirs, 1 Ohio, 466, in which case an execution had been issued and levied, and before sale proceedings were stayed by a writ of error and supersedeas, after which a new fi. fa. was issued and levied, and sale made. The court say, in delivering the opinion: “ The execution directed to Holcomb, was illegal at the time it was taken out: 1. Because there was a previous execution and levy, on which no sale had been made. 2. Because the defendant was dead before it issued. 3. Because his property, in the hands of his representatives, could not be taken without a previous scire facias.”
    
    The first point, therefore, decided in the last ease, must decide the present case, if that point was correctly decided, as I have no doubt it was. It is well settled, that where an execution is irregularly sued out, it is void .from the beginning — it is a mere nullity. In Parsons v. Lloyd, 3 Wilson, 345, the judge says: “ There is a great difference between erroneous process, and irregular (that is to say, void) process; the first stands valid and good until it be reversed, the latter is an absolute nullity from the beginning.”
    *In Reed v. Markle, 3 Johns. 524, which was an action of trover, it appeared the property in dispute was sold, and afterward the execution was set aside for irregularity, and the defendant having plead the statute of limitations, the question was, whether the statute began to run at the time of the levy, which was in 1799, or from the time of setting the execution aside, in 1802; and this depended upon the question whether the execution, being irregular, was also void. And the court decided, that inasmuch as the execution had been set aside for irregularity, it was a nullity from the time of issuing, and, therefore, the statute commenced running from the time of levying the execution, which was the act of conversion. The court refer to the case in Wilson, and say: “ In that case the court distinguished between erroneous and irregular process; the latter they held to be void, and a nullity from the beginning; that under the first, a party might justify until it be reversed, but not under an irregular process.”
    In the case of Dorland v. Dorland and Willets, 5 Cowen, 417, an execution was issued and levied on property of one .defendant, and before that writ was returned, the plaintiff, by consent of one of the defendants, issued another execution, and had it levied upon other property. This last execution was set aside as irregular. In Hoyt v. Hudson, 12 Johns. 207, it was decided, that after a constable had levied upon property sufficient to satisfy the execution, he could not afterward make a second levy, without-becoming a trespasser. The court, in giving their opinion, say: When an officer, under an execution, has once levied upon the property of the defendant, sufficient to satisfy the execution, he can not make ■a second levy. This principle appears to be well settled. In the -case of Clerk v. Withers, 2 Ld. Raym. 1072; 1 Salk. 322, it was ruled, that when a defendant’s goods are seized on a fi. fa. the defendant is discharged. In 1 Harris & McHenry, 408, “ the court •determined, that the issuing of two executions upon the same judgment, to the same county, was irregular.”
    In West v. Hughes, 1 Harris & Johnson, 6, the court decided, that a sale made by a sheriff, under an execution which had no return day, was void. The following is the opinion of the court: “ The court are of opinion that *the execution issued by Thomas S. Bond, as aforesaid, is void for want of a return day, •and that no title can be made under the sale made in pursuance thereof.”
    In West v. Hughes, Harris & Johns. 69, Purl’s lessee v. Duvall, the court decided that where a sheriff had levied upon real •estate, but went out oí office before the property was sold, that a venditioni exponas must be directed to the old sheriff who made the levy, and that a sale made by a succeeding sheriff, under a venditioni exponas directed to him, was void. And in answer to the position taken by the appellee’s counsel, “ That the venditioni exponas was the mandate of the court in the nature of an interlocutory .order, and, therefore, if erroneous, voidable, and not void, and that being voidable, the lessor of the plaintiff, on the return of the process, ought to have moved the court to set it aside ; and having failed to do this, he is precluded from taking any advantage of its irregularity in a collateral way.” The court say, “ it is suffi•cient to say that no express order appears on the record that the clerk should issue such a writ as has been issued, and if writs of execution are supposed to be issued under an implied authority from the court, such authority can only be implied in those cases where the execution is warranted by the principles of law.” 1 Cowen, 46; 18 Johns. 306.
    From the foregoing authorities, it is clear that while the levy upon real estate remained no subsequent fi. fa. could issue, and that all proceedings on such subsequent ft. fa. are null and void, as well against purchasers as others. The same doctrine is fully recognized in Woodcock v. Bennet, 1 Cowen, 734-737. And Cutter v. Colver, 3 Cowen, 30, the court decided that after a levy on land the plaintiff could not withdraw the execution and issue a ca. sa.
    
    But the plaintiff answers that this levy was set aside, and he relies on the order of March 27, 1817, in these words: “ On motion of Mr. Corry and I. G-. Burnet to set aside execution, motion, supported, and execution set aside in this case.” It is contended,, in the first place, by the defendant, that this entry is not specific-enough, in and of itself, to show that the motion referred to-the judgment under which the plaintiff claims. It was a motion made in the case of Ethan Stone, for the use, etc. v. Hezekiah Flint and others, “ but *who those others were can not be ascertained by the record itself, and no parol evidence was offered, and none was admissible to show that the word others meant. David, Thatcher, Seth M. Levenworth, and, James U. Looker,” the-other defendants named in the execution upon which the sale was made. The amount of the judgment is not even named.
    
      Secondly. It is contended that if the motion appeared to have, been made in the same case, the object and effect of the motion was to set aside the execution returnable to that term of the court-at which the motion was made, and not the execution on which the levy was made. It is the- every-day practice of the courts-to set aside appraisements, venditionis, fi. fas., etc., and whenever any other process than that returnable to the particular term is intended to be set aside or affected, it is so specified upon the record. An execution was returnable to the March term, 1817, and a motion was made to set aside the execution—what execution could be -meant unless the one returnable at that term ? And if all the executions issued in the cause were intended to have been, set aside, the court would have so expressed themselves.
    But if the court should think that the preceding executions Were set aside, we have still another levy which it is not pretended was ever set aside. On the fi. fa. to July term, 1817, the sheriff returns that he has levied on a stock of merchandise, that his writ is stayed by injunction, and that before sale he delivered the property to D. Thatcher, one of the defendants. "We insist that when a levy is made, it is for the time being a satisfaction of the-judgment, and that no other execution can issue until that levy is disposed of, the plaintiff himself can not abandon it without leave of the court (1 Binney, 214), neither could the sheriff after the act of levying; he can not even by suffering the property to be wasted, squandering the money, etc., prevent the conclusion of the law, that a levy is a satisfaction. 1 Ohio, 466, and authorities referred to.
    
      The next inquiry is, what effect had the injunction which was issued in the cause. It is provided by our statute that when an injunction is granted, the officer, if he has received the money before *he has notice of the injunction, shall pay over the money to the defendant, unless the court shall otherwise ^direct. This provision would have been nugatory, if, without the statute, the sheriff was bound to have restored the money. And as the statute is confined to the case of money received by the sheriff, he can derive no authority from it to deliver up goods. We must, therefore, resort to the practice of other courts to ascertain the duty of the sheriff with respect to goods levied upon prior to the granting of an injunction. The language of a writ of injunction is that the party “ desist from all further proceedings at law until,” etc. Eden on Injunctions, App. 265.
    “If an injunction is obtained upon the bill being filed after execution executed, and, • at the time of the injunction being obtained, the goods are not yet out of the hands of the sheriff; then, if the sheriff proceeds to sell without process, he will be ordered to pay the money into court.” 3 Mer. 234. And in the same case, page 231, it is said by counsel that “ after execution is actually issued, the common injunction can not operate against the sheriff, so as to restrain him from proceeding under the execution, and thus, in the case of goods actually levied in execution, it is usual to make the sheriff a party, in order to extend the injunction to him.”
    I think, therefore, it is a clear proposition that an injunction allowed against a party and the sheriff, has no other effect than to stay proceeding in the state they may be found when the injunction is served, in the same manner that a writ of supersedeas stays proceedings. If a levy has been made, and the sheriff is a party, he can not sell, but must retain the goods. If he has not levied, he can not afterward make the levy.
    Again, the sale is void, because the property had been previously sold on a former execution, issued on the same judgment. This sale, which was for twelve hundred and fifty dollars, was never set aside, and until this was done, no subsequent execution could issue to sell the same property. The sheriff, when the bid was made by Allen, might accept or refuse it, but after he had accepted Allen’s bid, and struck'off the property to him, it was out of his power to say that the property was not sold, unless he done it at the time of ■sale, and then he must have offered the property again. This course would have been pursued by the sheriff in the present ease, if Allen had refused to pay at the time of sale. *If the sheriff saw proper to strike the property off to Allen, without requiring the cash to be paid down, it was a question between him, the plaintiff and the purchaser. The sheriff was liable for the •money to the plaintiff. Whether the plaintiff ever obtained the money or not, so much of the defendant’s debt was satisfied by the sale of the property. If there were any circumstances attending the sale, which would make it unjust to hold the purchaser to his bid, he might perhaps, on motion to the court, have the sale set aside, but it could be done in no other way, and in 5 Cowen, 38, the court decide it can be done in equity.
    In Adams v. Smith and Purmeter, 5 Cowen, 280, a sale had been made of a personal property, but the value thereof having been re-covered against the sheriff and plaintiff, the court, on motion, gave leave to strike out the return of sale, and ordered a fi. fa. to issue for the whole. This course ought to have been pursued in the present case. If Allen was an insolvent when he bid, the court would not perhaps have compelled the plaintiff or the sheriff to resort to their action for the purchase money, but if he was perfectly solvent, the court would not set aside the sale without consent of all parties concerned. They would not do it, because they would not permit men to trifle with the process of the court.
    In Cairns and Lord v. Smith, 8 Johns. 337, a sale had been made, but the attorney was informed by the sheriff, that the purchaser ■had not paid the money nor demanded any deed, and he therefore issued another fi. fa. and offered the -property again; the ■court set aside the execution as irregular. The court say: “Whether the sale was bona fide or valid, or fraudulent and void, is a question which can not be tried upon the present motion; nor can it be permitted to the attonpey who issued the execution, to determine that point for himself. By recalling and suppressing the first execution, after a sale under it, he deprives the purchaser of ' his right, if any right was legally acquired under the first sale.” If, then, the purchaser required a right under the purchase, the defendant also acquired a right to have the purchase money applied in satisfaction of the debt, and he could not have been deprived of that right by an order of the court, unless he had been called upon to show cause ^against such an order, and certainly, as before remarked, the sheriff could not set aside the sale, neither could the plaintiff nor his attorney. I contend, therefore, that for this last reason, the sale is void. The property had been sold on a former execution, and therefore there was nothing for the sheriff to sell under a venditioni exponas. If the property could have been sold again under the judgment, it could only have been done after a new levy had been made, and this could only have been done under afi.fa. et lev. fa. Such a writ was not issued.
    Again, it was contended at the trial, and is now contended, that the defendant, Seth M. Levenworth, had not a legal title to the premises in question. The only title which he had, was an assignment made on the back of the lease by the original lessee, in which he assigns, grants, and sets over to S. M. and Zebulon Levenworth all the estate, right, title, interest, and demand of him the said’ Robinson, to the piece of ground, lot, messuage, or tenement, particularly described and set forth in the within lease. There is only one witness to this assignment. I contend this did not transfer a legal title.
    The act of 1810, providing for the execution and acknowledgment of deeds, reads thus: See. 1. That all deeds for the conveyance of lands, tenements, and hereditaments, situate, lying and being within this state, shall be signed and sealed by the grantor in presence of two witnesses, who shall subscribe the said deed or conveyance, attesting the acknowledgment of the signing and sealing .thereof; and if executed within this state shall be acknowledged by the party or parties, or proven by the subscribing witnesses before a judge of the court of common pleas, or a justice of the peace in any county in this state.” The question, therefore, is presented, whether Robinson conveyed, or intended to convey, either lands, tenements, or hereditaments; because, if he did, then-there must have been two witnesses present, who should “subscribe the deed or conveyance.”
    There is no question, I think, but the legislature, when they ■ passed this and all our other laws wherein the words tenements and hereditaments are -.used, intended to include all manner of estates in lands, which the word land would not include. Eor, un- ■ less such was their intention, it would be ^difficult to find any authority in our statute book to dispose of a lease for years for the payment of a man’s debts. And I think we shall find, by an examination of our several execution laws, that the legislature' could not have intended that leases for years could he sold under the denomination of goods and chattels. In section 8 of the execution law of 1810, “ in case goods and chattels be levied upon and returned as remaining in the possession of the officer unsold for want of buyers, such officer shall return with the writ a true and perfect inventory of the goods and chattels to be taken,” can it be supposed that the legislature intended the officer should take hold of a leasehold estate for ninety-nine years? If such an estate could be considered as goods or chattels in the sense used by the legislature, then the officer must have taken possession of them or he could not have complied with the law. The statute regulating the duties of justices of the peace, authorizes constables to levy on the goods and chattels of the defendants, but I think the constable could not sell a leasehold estate for ninety-nine years. If under the terms goods and chattels such a lease is included, then the right to this bind of an estate may be tried by a magistrate at the present time, and formerly by a jury of five persons. Again, if leases for ninety-nine years are to be considered as goods and ■chattels, then a mere delivery would be a sufficient transfer of the title, and no written transfer or assignment would be necessary. And the statute of frauds and perjuries would be a dead letter, for an equitable interest to lands can not be created or transferred without a deed or note in writing. In Putnam v. Wescott, 19 Johns. 73, the court decided that their statute authorizing a justice ■of the peace to issue an execution “ commanding a constable to levy the debt, damages, and costs of the goods and chattels of the person,” did not authorize a constable to sell a term for years. The judge says, “ the real question, then, is, in what sense the legislature used the words goods and chattels? Whether they mean ■chattels personal only, or chattels generally, including both real and personal ? ” And, again, “ I am of opinion that the legislature used the expression goods and chattels as regards justices’ executions, in reference to goods and chattels personal.” Why may not the same interpretation be given to our statute using the same language ?
    *But should the court be against us on the foregoing points, we contend that a new trial ought to be granted; because Ira White, who was produced as a witness, was interested in the event •of the suit. First. He was interested because he had covenanted with Bisbee, th e lessor of the plaintiff, that he would forever warrant ¡and defend the' premises against all persons claiming under him, his heirs, or assigns. The court will recollect that the principal -question before the jury was this, whether White had not forfeited the lease by not paying the rent according to the terms of the lease, and whether he had not expressly agreed that there should be a forfeiture. Here, then, was a witness who was liable under his own covenant to answer Bisbee in damages, in case Bisbee should be unable to recover against the defendant. If by his own act he had divested himself of his title, he was liable under his covenant with Bisbee, and he could not, therefore, testify in the cause, be•cause he was endeavoring to avoid responsibility under his covenant. The question was, whether he, the witness, had agreed to forfeit the title. He had agreed to warrant and defend against all •of his own acts; he was, therefore, bound to defend and warrant against an act of forfeiture. He was directly interested in the event of the cause; if the forfeiture was established, his liability to Bisbee was fixed. And the record in this case might be used in evidence in a suit against White, to show the amount of costs, if for no other purpose. Jackson v. Hallenback, 2 Johns. 394; Heermance v. Vernoy, 5 Johns. 5; 1 Phil. Ev. 49, 50, and note.
    Starr, for defendant:
    The defendant moves the court for a new trial, on the ground: First. That previous to the execution of May 12, 1819, by which the lot in controversy was taken and sold to Ira White, an execution had issued on the same judgment, tested October 15, 1816, ■and levied on eighty acres of land as the property of one of the defendants in the execution. It is said that this levy had not been set aside, but was a subsisting levy when the lot was levied upon and sold under the subsequent execution of May, 1819. This .assumption is hardly warranted by the facts in the case. To the execution of October 5,1816, there is a return *that it was levied upon the eighty acres of land, and on January 2,1817, a writ of venditioni exponas issued, commanding the sheriff to make ■sale of the eighty acres of land, to which he returned that he had .sold it to Robert Boal, as the agent of John H. Platt; but the terms of sale not being complied with, it remained on hand unsold for want of buyers. This is under date of March 29,1819; and on the 27th of the same month, two days before, there is an entry ¡setting aside the execution in the cause. Whether this entry is to be considered as referring to the execution of October 5, 1816r or to the execution of January 2, 1817, or to both, is somewhat doubtful. If to the former, then the levy was sot aside, and the 'objection fails. The more reasonable conclusion is, that it was intended to refer to both ; that the object of the motion was to set aside everything that had been done by execution on the judgment. There was no sensible meaning in a motion to set aside themnditioni exponas only, which had not then been returned. But admitting that there then was a subsisting levy on the eighty acres of land, when the lot was levied upon and sold by the execution of May 9, 1819, did it make that execution void, and defeat the •title of the purchaser under it ? As the law stands, a levy three years old would amount to nothing. It is not sufficient to say •that the execution of May 12, 1819, ought .not to have issued, the former levy being in force, or that it might have been set aside on motion, for that reason. To have the effect of defeating the title of the purchaser, the irregularity must have been such as to have rendered the execution void, not merely voidable. It issued upon a regular, unsatisfied judgment, and upon, the face of it the execution is regular. The title of the purchaser, therefore, under it, is complete, and not liable to be divested in consequence of prior executions having been issued and levied, which did not produce a satisfaction of the judgment. 5 Wheat. 503. The first levy did not satisfy the judgment, even if the land levied upon was equal in point of value to the judgment. It was still in full force as such. A levy upon real estate is nothing more than a designation by the officer of the particular tract of land he proposes to sell, or appropriate toward satisfying the execution. It does not change the possession, or affect the title, *as in the case of personal property taken upon execution. In the latter case it is a satisfaction of the judgment, and if the defendant be sued in debt, or by scire facias, he may plead it' in bar. Not so when real estate has been seized by execution. In the one case if an injury be. done to the property, the officer may maintain an action for it, but it was never heard of that an officer could maintain an action for a trespass committed upon real estate, because-he had levied an execution upon it. It is worthy of remark that the execution upon which the lot was sold has never been set aside, and if it had been, the title of the purchaser might not have-been affected by it.
    
      The eases in 8 Johns. 361; 13 Johns. 337; 16 Johns. 573; 1 Cowen, 734; 1 Ohio, 458; 2 Ohio, 287; 3 Ohio, 187; 4 Wheat. 503, manifest the irregularities which do, or do not defeat the title of the purchaser of real estate sold upon execution. Indeed, the authorities-cited by the counsel for the plaintiff perform the same office, and it is believed that none of them sustain the position that a levy upon real estate by a prior execution, defeats the title of a purchaser under a subsequent execution, issued upon the same judgment. In the case of Arnold v. Fuller’s heirs, 1 Ohio, 458, the defendant in the execution, had been dead 'near four years before it issued, by virtue of which the lands were sold, and the purchaser was the attorney of the plaintiff, who is usually chargeable with notice of all irregularities.
    After the decisions which have been made in this court upon the subject of titles to real estate, acquired by purchase under execution, it would be strange if a title thus acquired, and otherwise void, should be defeated by a circumstance seemingly so unimportant as the levy of an execution upon other real estate, issued upon the-same judgment, near three years before, and which nothing but the diligent search of a vigilant clerk could have detected. To give to such a law the effect contended for, imposes upon the purchaser various duties, and requires of him a degree of examination-which few or none will make. The spirit of the decisions has been to protect the purchaser at judicial sales ; but to make his title depend, or rather to make it liable to be defeated by the levy in question, would remove entirely the guard to his safety.
    
      *Second. It is assigned as a second reason for a new trial, that a small “stock of merchandise” was levied upon by virtue of an execution, issued upon the same judgment, March 31, 1817, and which, it is said, had not been disposed of when the execution of May 12,1819, was issued. It appears from the sheriffs return to the execution, that he disposed of it himself, by restoring it to one of the defendants in the execution, from whom he had taken it, after there had been a litigation concerning it. Whether he did right or wrong in so doing, or made himself liable to the plaintiff, in the execution for the value of the merchandise, can have no bearing upon the question of White’s title under the execution, by virtue of which the lot was sold. One thing is true, that upon the return of tins execution it was not satisfied, as appears upon the return itself. If the merchandise taken upon the execution was sufficient to satisfy it (which does not appear), it was unsatisfied when it was returned, and the improper conduct of the officer in restoring it, if it ought not to-have been done, is a matter to be settled between himself and the plaintiff, and to those two it is confined in its effects.
    It is assumed, as a ground for a new trial, that to the venditioni exponas of September 27,1819, the sheriff returned that he had sold the lot in controversy to Samuel Allen, for one thousand and fifty dollars. It is a part of this same return that he had not received the money, and that Allen refused to comply with the terms of sale. What was the sheriff to do ? He could make no other return. It is well settled that if property be stricken off to a bidder, and he refuses to complete the purchase, the sheriff may immediately expose it to sale again, and strike it off to a person who will pay for it, though a less sum be given for it than was first bidden. In this case, upon Allen’s refusing to take the lot, the sheriff might have varied it, and have stricken it off to White for one hundred .and seventy dollars (as it was sold to him afterwai’d), if he had been the highest bidder. If this could have been done, it can not vary the case by returning the execution, with|the fact of Allen’s refusal, and taking out another.
    Striking off the lot to Allen did not transfer the lot to him by •operation of law, and by that means work a satisfaction of the execution. The sheriff had no means of compelling *Allen to take the lot. His sale was within the statute of frauds and perjuries. 2 Caine, 61; 2 Johns. 248. But suppose he had; his omission to do so would only make him liable to either the plaintiff or defendants in the execution, whose interest might be most affected. It would be odd, indeed, if the misconduct of a ministerial officer under one •execution, could affect the title of a purchaser under a subsequent •execution. It would be giving to the conduct of the officer a bearing and an effect which the law does not warrant.
    It is alleged that Seth M. Leavensworth, whose estate or interest in the lot was sold on the execution, and which is the title of the plaintiff, had no legal title to it, because the assignment of the lease to him and Z. Leavensworth, was not attested by two subscribing witnesses. The assignment was made on July 11, 1814, and was attested by one witness and acknowledged before a justice of the peace. Without undertaking to decide what the law now is, it is believed, that prior to the act of February 24, 1820, there was no law of the State of Ohio requiring the attestation of witnesses to the assignment of a lease.
    A leasehold interest might be sold as a chattel on execution, at common law. 3 Black. Com. 417. And previous to the act of January 29, 1821, any title by lease might have been sold as goods, no doubt, in Ohio. That act required that the interest of a lessee under a permanent lease, when sold on execution, should be appraised as real estate. But even if an appraisement, in this case, had been required before sale, the omission of the officer to cause it to be done, would not destroy the title of the purchaser. 3 Ohio, 187.
    If Ira White was incompetent witness, by reason of interest, in the event of the suit, it arose from his deed of September 25, 1824, conveying the lot to the lessor of the plaintiff. In that deed, he covenants against all persons claiming under himself. His testimony related principally, if not entirely, to what he said and did some months after the execution of the deed, about January 1, 1825, in relation to a supposed forfeiture of the lease. His acts in January, 1825, would not have been the subject matter of his warranty in September, 1824. A grantor who has warranted merely against persons claiming under himself, is a competent *witness for his grantee against persons not claiming under him. 1 Phil. Ev. 50.
    The question whether the lease had been forfeited or not, was submitted to the jury under the direction of the court, as to what might occasion a forfeiture of the lease then before them; and a verdict can not be said to be so contrary to evidence, as to justify a court in setting it aside, when there was much evidence on both sides.
   *By the Court :

The first ground assigned for a new trial rests upon exceptions to the title of the plaintiff’s lessor. And the first objection is, that the execution issued to November term, 1816, was levied upon lands of one of the defendants, and until that levy is disposed of, no second fi. fa. could issue. The plaintiff’s answer to this is, that in March, 1817, this execution and levy were set aside. And upon an examination of the order of court relied upon, we are satisfied that such was the fact. That objection, therefore, is not supported by the facts in the cause.

A second objection is, that on the execution to July term, 1817, there is a return of a levy upon personal goods of one of the defendants. But it is a part of that return, that the sale was stayed by an injunction, and the goods redelivered to the owner.

This we deem a sufficient answer to the objection. It was lawful for the sheriff, upon the service of the injunction, to redeliver the goods to the owner. The injunction bond was substituted for the plaintiff’s security. For the sheriff to retain the goods might enforce a great loss upon him, or upon the defendant, by the-natural decay of the goods, by their accidental loss, or by the charge of keeping them, as in the case of live stock. The case is very different from that of a levy on land, which is not perishable; and where the debtor’s possession is not divested by the levy.

The sale to Allen, on the execution to November term, 1819, it is maintained, was a disposition of this property, so that a second sale could not be made. The return shows that Allen refused to complete the contract, by paying the money. We incline to-the opinion, that if the purchaser refused *to complete the-contract, by paying the money, the sheriff was not bound to make-himself liable, by returning an actual sale, and trusting to a recovery against the purchaser. But, without deciding this point, we do not hesitate to say, that if the parties to the execution took no exception, at the time, and a new vendí, issued without objection, the writ was not void, and third persons can not now so treat it.

The assignment of the lease from Robinson to Leavens worth was valid, though tested by one witness. The law of 1805, respecting conveyances, did not extend to leases for terms of years. Two witnesses, therefore, were not required. The law of 1824 is more comprehensive, in its terms, and requires leases to be attested as other conveyances of real estate.

The defendants, having put White upon his voir dire, can not afterward object to him on the ground of interest. Besides, the judges who presided at the trial think well of his testimony. The same judges also report that, upon the question of fact submitted to the jury, the question was fairly before them upon such grounds as do not admit of the interference of the court to grant a new trial, as in case of a verdict against evidence. Motion overruled and judgment for plaintiff. 
      
      11ote.—The foregoing opinion is drawn from notes furnished by Judge-Tease. Nothing is said in them upon the point whether a lease for ninety-nine years, of real estate, could be sold as a chattel on execution. But, as the validity of such sale was indispensable to sustain the plaintiff’s title, the legitimate inference seems to be that the court considered leases liable to be seized in execution and sold as chattels. Otherwise, a new trial would have been granted. — Reporter.
     