
    Noe’s Lessee vs. Purchapile.
    If a defendant in an execution, whose land is levied on, had all the information that a written notice would give, or was actually present when the land was sold, he cannot avoid .the sale for want of twenty days written notice, under the act of 1799, ch. 14, sec. 1.
    This was an action of ejectment, brought to recover two tracts of land in Grainger county. Upon the trial, in the court below, the plaintiff read in evidence to the jury, a deed of conveyance from the sheriff of Grainger county, founded on a sale of the land by virtue of several fieri faciases against the defendant. The defendant then proved, that the sheriff did not, before the sale, give him twenty days notice, as required by the act of assembly. The plaintiff then proved, that after the levy and before the sale sometime, the defendant procured the lessor of the plaintiff to purchase the land at the sale; that after the sale, and after the two years for redemption had expired, and the defendant was unable to redeem, the lessor of the plaintiff agreed verbally with the defendant to pay him forty dollars more for the land, although he had paid forty-eight dollars, a large portion of the full value, and the defendant surrendered the title papers on which the sheriff’s deed was draughted, but declined taking into his possession the horse, which was to be given for forty dollars, for fear of creditors, and the lessor of the plaintiff has professed a willingness to pay ever since. Upon this evidence the court, among other things, charged the jury, that the actual knowledge of the defendant of the sale, and his conduct in relation thereto, both before and after the sale, would not be sufficient without written notice, nor amount to a waiver or written notice; but an express waiver might be made and supersede the written notice. The jury found a verdict for the defendant, and the plaintiff moved for a new trial, which motion the circuit court overruled; from which the plaintiff prosecuted an appeal, in the nature of a writ of error, to this court.
    
      P. Lea, for plaintiff in error.
    
      R. J. M’Kinney, for defendant in error.
   Green, J.

delivered the opinion of the court.

In the charge of the court, we think there is error. The notice required by the act of assembly of 1799, ch. 14, sec. 1, was intended for the benefit of the defendant in an execution, that he might be present and divide the land into different lots if he should so desire, as provided for by the third section of the act. It would seem, therefore, wholly useless to require proof that a written notice was served upon him, if it clearly appear that he had all the knowledge such notice would communicate, and was actually present at the sale. But in this case, to permit the defendant to avoid this deed for want of the written notice, would enable him to practice a gross fraud upon the lessor of the plaintiff. The proof shows that the defendant, after the levy and before the sale, applied to the lessor of the plaintiff and procured him to purchase the land. After the sale, and after the two years for redemption had expired, the lessor of the plaintiff agreed to give the defendant forty dollars more for the land than had been bid at the sale. Shall it now be' said, that he shall avail himself of this informality of the sheriff to defeat the title acquired by his procurement, and partly for his benefit? This would be departing from the spirit of the act, and sticking to the letter merely. When the defendant procured the lessor of the plaintiff to purchase the land, he evinced he possessed all the information the written non . , , , „ , . . .„ tice would communicate, and the lessor or the plaintiff had a right to suppose it had been regularly given. The defendant, by his conduct, assisted in making the sale, stood by at the time, and had an understanding with the purchaser for his benefit. All this amounts to a waiver of notice. We are of opinion that the judgment should be reversed, and the cause remanded for another trial to be had therein.

Judgment reversed.  