
    NOVEMBER TERM, 1844.
    John Doe, ex dem. Stephen Cocke v. Tidence Lane.
    The charter of the Mississippi and Alabama Railroad Company confers the power of holding real estate, for the purpose of erecting thereon the bank buildings, as well as of erecting a railroad, &c.
    It is competent to prove by parol, or by introducing the advertisements, that the sheriff who sold real estate did advertise the same according to law.
    When a sheriff returns that he levied on and sold certain real estate, it is to be understood that he sold the fee simple.
    As a general rule, all the defendant's land may be sold under execution, and if land, or an interest therein, has been sold by a sheriff and conveyed by a deed in fee simple, it is with the defendant, who resists the validity of such sale, to show that the defendant had not such an interest as could be sold, the ownership of the defendant being, of course, first established by the purchaser.
    This was an action of ejectment, brought in the Circuit Court of Rankin county, by John Doe, on the demise of Stephen Cocke, to recover several lots lying in the town of Brandon. Tidence Lane was made defendant. The jury found for the defendant. From the bill of exceptions, the following facts appear, to wit: On the trial, the plaintiff read to the jury a judgment in favor of Daniel W. Wright, et al. v. The Mississippi and Alabama Railroad Company, rendered on the 23d day of October, 1839, in the Circuit Court of Rankin county. • The plaintiff also read the writ of fieri facias which issued on said judgment, and the following levy indorsed thereon, to wit: “ Levied March 18, 1840, on lots Nos. 3, 4, 6, 8, and 10, in the southwest quarter of the town of Brandon, and bounded on the north by Cherry street, on the east by Water street, and on the south by southern boundary of the town of Brandon, and on the west by Black street. W. Fore, sheriff, by W. C. Harper, deputy.” And also the following return of the sheriff, to wit: “Received $100, by sale of the property levied on in this case. I can find no other property of defendant. W. Fore, sheriff, by W. C. Harper, deputy.”
    
      The plaintiff then offered as evidence the following deeds, to wit: A deed from William H. Shelton to the said Mississippi and Alabama Railroad Company, dated 17th March,. 1838, for a part of the premises mentioned in the declaration, and a deed from Richard A. Hargis to said Mississippi and Alabama Railroad Company, for the balance of said premises, dated 6th February, 1837 a deed from Wright Fore, sheriff, to Richard Evans, for all of said premises levied on and sold as above stated; and also a deed from Richard Evans to Stephen Cocke, the lessor of plaintiff.
    To the reading of all of said deeds the defendant objected,- on the following grounds, to wit
    1st. That the Mississippi and Alabama Railroad Company could not purchase or own lands for the purpose of a banking-house, or for any cither purpose, except for the purposes mentioned in the said charter.
    2d. That the return of the sheriff did no-t,. nor did said deed from the sheriff, show legal advertisement, nor what estate was sold or conveyed, — whether an estate,for years, for life, or in fee.
    3d. That it did not appear, by the said sheriff’s deed and levy, that the Mississippi and Alabama Railroad Company had such a title as could pass by sheriff’s- deed.
    4th. That, under the circumstances above stated,- no valid sale of the premises by the sheriff had taken place, and that the said Richard- Evans, thus purchasing, acquired no valid title to the said premises.
    Which objection was sustained by the Court on the said grounds, and all of said deeds ruled out and rejected. To which the plaintiff excepted.
    The plaintiff prayed an appeal to this Courtl The following are the errors assigned, to wit:
    The Court below erred,
    1st. In charging, as the opinion of the Court, that the Mississippi and Alabama Railroad Company could not purchase or own land for the purpose of locating a banking-house thereon, or for any other purpose, except,to make the railroad mentioned in the charter of said company.
    2d. In charging, that the return of the sheriff did not show, nor did the deed from the .sheriff show* legal advertisement, nor what estate was sold or conveyed, whether an estate for years, for life, or in fee ; that it did not appear', by said sheriff’s 'deed and levy, that the said Mississippi and Alabama Railroad Company had sueh a title as could pass by sheriff’s deed.
    3d. In charging, that no valid sale of the premises by the said sheriff had taken place, and that the said Richard Evans, thus purchasing, acquired no valid title to the said premises.
    4th. In excluding from the jury the deed of conveyance from Richard A. Hargis, and the deed from William H. Shelton, to the said Mississippi and Alabama Railroad Company*
    5th* In excluding from the jury the deed of conveyance from Wright Fore, sheriff, &c., to Richard Evans, and also the deed from said Evans to the lessor of the plaintiff.
    6th. The said Court erred in other particulars, as is manifest from the said record.
    
      Cocke and Evans, for appellant.
    This is an action of ejectment. It is brought into" this Court by appeal from the Rankin Circuit Court. It was instituted by the -appellant in the Court below, to recover possession of a portion of certain town lots in the town of Brandon, on which is situated the banking-house of the Mississippi and Alabama Railroad Company.
    The points involved are contained in- the bill of exceptions to the instructions by the Court below to the jury, on the trial of the cause in that Court.
    On the part of the appellant, it is contended that the instructions of the Court below were altogether erroneous. They were as follows :•
    1st. “ That the Mississippi and Alabama Railroad Company could not purchase or own lands for the purposes of a banking-house.”
    . If it were necessary, the task would not be difficult to show ample authorities to the point, that, to all banking incorporations, the right to have a bank-house, or place to transact their légitimate business, is a necessary, indispensable, and proper incident. See Angelí on Corporations, p. 58. Without such a power, the object and end of their creation would be unavailable. But, by the charter of this institution, this subject is specifically provided for.
    By the latter part of the first section of the charter, this language is used (Acts of 1836, p. 153) : “And the said company shall be capable in law of purchasing, accepting, holding, selling, leasing, and conveying estates, real, personal, and mixed, to the end and for the purpose of constructing and erecting a railroad from the town of Jackson, in the State of Mississippi, to the city of Mobile, in the State of Alabama, and for the purposes hereinafter mentioned.”
    One of the purposes thereinafter mentioned, is the subject of a place for a banking-house for the company. At page 164 of the same Act, sec. 23, this language is used : “ That the president and directors of said company shall have power to select the most suitable place, east of Pearl river, and within twenty miles of the route which may be established, for the location of a principal banking-house, which, when selected, shall remain permanent.”. See also section 24.
    It is therefore certainly erroneous to say that the company could not purchase or own lands for the purposes of a banking-house.
    2d. The second instruction is, “ That the return of the sheriff did not, nor did the deed from the sheriff, show legal advertisement, nor what estate was sold or conveyed, whether an estate for years, for life, or in fee.”
    This charge was erroneous. There was no part of the proceedings in the cause that either called for or justified such a charge. But, as given, it divides itself into 'two propositions ; first, the sufficiency of the return; and secondly, the necessity, under our laws, for a sheriff’s deed to set forth the particular estate conveyed as an estate for years, for life, or in fee.
    As to the first point: The form of the execution directs the sheriff, that, of the goods and chattels, lands and tenements, of the defendant, he should cause to be- made the money mentioned in the execution.
    In How. & Hutch, sec. 17, page 633, the sheriff is directed, in case he levy on land, to give public notice of the time and place of sale, at least thirty days, by advertisement at the door of the court-house in his county, and at two other public places within the same ; one in the neighborhood of the property taken, and also in one of the public gazettes, if there be one published in his county. He is also instructed to sell to the highest bidder.
    It is believed to be sound law to say, that the law, at least prima facie, presumes that so important an officer as the sheriff has complied with the directions of the law in the discharge of his sworn duties ; and, unless the contrary is affirmatively made to appear, on a proceeding by a party to the execution, his doings are to be taken as having been done according to law.
    In the sale of either real or personal property, by virtue of an execution, the sheriff occupies the position of mutual agent between the plaintiff and defendant. He is altogether disinterested, and is presumed to do his duty.
    We have found no case, in which it has been held that it is incumbent' on a bona fide purchaser at execution sale to see that the advertisements have been put up at the number of places, or that they have remained there for the time required. The law presumes it, if the sheriff shall sell; and the plaintiff and defendant are presumed to acquiesce in the correctness of the acts of their agent, if they allow the sale to take place. A purchaser at such sale ought to be protected ; caveat emptor does not apply to him.
    
      If the parties to the execution make no objection, a third party, not in interest, has no right, in a collateral proceeding, to say the sheriff did not do his duty as between the plaintiff and defendant to the execution. With that matter he has no legitimate concern. Defendant Lane is a mere stranger.
    The following authorities would seem to demonstrate the soundness of these views :
    A sale is valid, though the sheriff did not advertise in the gázette agreeably to the Act of 1797. Turner v. McRea, 1 Nott & McCord, 11.
    If the sheriff fail to advertise the sale of property according to law, he may subject himself to damages ; but it does not affect the right of the purchaser, unless, through fraud, the sheriff has omitted to advertise, and the purchaser had knowledge of the fraud. Law■rence v. Speed,t 2 Bibb’s Ky. Rep. 401.
    
      If the sheriff take land on .execution when the debtor has sufficient personal property, th,e sheriff’ is responsible to the debtor, but the sale of the land is not void ; so if the sheriff fail to advertise according to law. Hayden v, Dunlap, 3 Bibb, 21.6. This case also decides that the sheriff’s deed may he impeached for fraud. But the suit must be by the debtor in the execution. A sheriff’s deed cannot be impeached by a stranger.
    The purchaser is not bound or affected by the irregular acts of the officer or plaintiff in which he did not participate. McKinney v. Scott, 1 Bibb, 155 ; Reardon v. Searcy, 2 Bibb, 202 ; Colema.n v. Tr'abue, ib. 518; Lawrencev. Speed, ib. 401; Hayden v. Dunlap, 3 Bibb, 216 -; Cox v. JVelson, 1 Monroe, 95 ; Brown v. Miller, 3 J. J. Marshall, 439 ; 2 Peters’ Digest, 360.
    The general principle by which the validity of sales upon executions is to be taken, is laid down by the Supreme Court of the United States, in Wheaton v. Sexton, 4 Wheat. 503 ; it is there decided that the purchaser depends upon the judgment, levy, and deed ; all other questions are between the parties to the judgment and the officer, and it is right it should be so.
    Whether the officer sells before or after the return, whether he makes a correct return or no return at all to the writ, is immaterial to the purchaser, provided the writ was duly issued and the levy made before the return. Ibid.
    The same doctrine has been substantially held in most of the States. See Ohio Reports, condensed vols. 1, 2, 3 & 4 in one vol. p. 529, Lessee of Allen v. Parrish, 3 Hammond, 187. When land is sold on execution, without appraisement, and no objection is made at the return of the execution, the sale to a stranger is good.
    The law presumes the officer has done his duty. Drake v. Collins, 5 Howard, 256 ; 1 Yerg, R. 308,
    But in the case now under consideration, it may be safely said these proceedings baye been unusually regular,
    ■On the execution is the following indorsement s
    ■“ Received Dec. L9th, 1839. W. Fore, Sheriff,
    .“Levied March 18., 1840, on lots 3, 4, 6, 8 and 10, in the southwest quarter of fhe town of Brandon, and bpund.ed on the north by Cherry street, on the east by Water street, and on the south by the southern bounds of the town of Brandon, and on the west by Black street. W. Fore, Sheriff, per W. C. Harper, Deputy.
    “ Received $100 by the sale of the'property levied on in this case. I can find no other property of the defendant. W. Fore, Sheriff, per W. C. Harper, Dept.”
    The deed from Wright Fore, sheriff, to Richard Evans (the purchaser), recites the judgment, execution and levy particularly, and that the said sheriff having given thirty days’ previous notice that the above-described lots would be sold at public auction, by virtue of said writ of fieri facias, on the third Monday in April, 1840, between the hours of eleven o’clock, A. M., and four o’clock, P. M., of said day, at the door of the court-house of said county of Rankin, did at the same time and place offer said premises for sale at public auction, and the said Richard Evans, party of the second part, then and there appeared, and bid for the premises the sum of one hundred dollars, which sum was more than any other person offered or bid for the same. Whereupon the said premises were struck off to the said Richard Evans, he being the highest and best bidder therefor. Now this indenture witnesseth, that the said Wright Fore, sheriff, as aforesaid, for and in consideration of the premises, and of the sum of one hundred dollars to him the said sheriff in hand well and truly paid by the said Richard Evans, at and before the sealing and delivering hereof, the receipt whereof is hereby acknowledged, hath this day granted, bargained and sold, aliened and conveyed unto the said Richard Evans, his heirs and assigns forever, all the right, title, interest and claim, that the said Mississippi and Alabama Railroad Company, defendants, have in and to the aforesaid lots, with all the appurtenances thereunto belonging. To have and to hold the same to the said Richard Evans, his heirs and assigns forever.
    To the regularity of the signing, sealing and delivery, or thepro-'bate and the recording of the deed, no objection was or can be made, but only as to the sufficiency of the reciting of the publication or advertising.
    It is however believed, that the authorities above cited are sufficient, if the recitation of the advertisement was in anything defective. But it is not; on the contrary, the proceedings in the sale of these premises have been unusually full and regular.
    If, however, it should be considered there were any omissions, the Court will perceive that the'lessor of the plaintiff is a subsequent purchaser from Evans, and that he cannot be affected by them. ,
    A sheriff’s deed is evidence, per se, of title in the grantor, and parol evidence is inadmissible to contradict the recital, or to show that the land was sold under a different judgment and execution than recited in the deed. 7 Wend. 83 ; 1 Cow. 481 ; 17 Johns. 167 ; 12 Johns. R. 427.
    It is not necessary that the purchaser at sheriff’s sale, in deriving his title, should show the sheriff’s return. It is sufficient for him to show the sheriff’s deed, and that he had authority to sell. 8 Yerg. 179 ; 1 Johns. Cases, 185.
    A sheriff’s sale of land, even held adversely, is valid ; and the Champerty act does not apply to judicial sales.1 2 Wend. 166 ; 2 Dana, 325 ; 1 Dana, 211 ; 4 Kent, 446, note, 448, 449 ; Adams on Ejectment, Appendix, 502, 504. The statute law is, All conveyances by commissioners and sheriffs hereafter to be made, for lands, tenements, and hereditaments, sold in virtue of any decree or judgment of any court within this State, shall be and they are hereby declared to be good and effectual for passing the absolute title to such lands, tenements, and hereditaments to the purchasers thereof, and all persons claiming under them, any law to the contrary notwithstanding. How. & Hutch. Dig. p. 350, sec. 35.
    But the second division of the second'charge of the Judge in the Court below, was, that this sheriff’s deed was defective and insufficient, because it did not set forth what estate was sold and conveyed, whether an,estate for years', for life, or in fee.
    In the conveyances between individuals, by conveying the larger estate the lesser is merged and included. The statute of this State regulates the estate which passes by the conveyance of the officer’s deed. It is all the right, title, interest, claim and demand of the defendant, and the uniform practice is to observe the form that has been followed in the deed from W.'Fore, the sheriff, to Richard Evans. The requirement on this subject is to be found at page 644, sec. 48, How. & Hutch. Digest. It is as follows : “ When lands and tenements shall be sold according to the provisions of this act, by virtue of any writ of fieri facias, capias ad. respondendum,, or venditioni exponas, or other legal process, it shall be the duty of the sheriff,'or other officer, by whom such, sale shall be made, on the payment of the purchase-money,'to execute to the purchaser or purchasers, such deed or deeds of conveyance .as may be necessary and proper to vest in the purchaser or purchasers, all the right, title, interest, claim and demand of the debtor or defendant, which he had in any such lands and tenements so sold, either in law or equity.”
    Nothing farther is attempted by the deed under consideration, and it complies exactly with the requirements of the statute.
    Having considered of the principal objections, the third instruction, that it did not appear by the sheriff’s -deed and levy that the Mississippi and Alabama Railroad Company had such title as could pass by sheriff’s deed, and the fourth instruction, that under the circumstances above stated no valid sale of the premises by the sheriff had taken place, and that the said Richard Evans thus purchasing acquired no valid title to the premises, — are founded on the views of the Court, that the Mississippi and Alabama Railroad Company could not purchase or own lands for the purposes of a banking-house. Having shown this to be erroneous, it follows that the third and fourth instructions are also erroneous. The same remark is applicable to all the deeds that were offered and rejected ; as on examination it will be found that the deed from Richard A. Hargis and wife to the Mississippi and Alabama Railroad Company, William H. Shelton and wife, to the Mississippi and Alabama Railroad Company, Wright Fore, sheriff, to Richard Evans, and from Richard Evans to the lessor of the plaintiff, are full, technically and well drawn, executed, acknowledged and recorded, and are otherwise without the least shadow of objection.
    It is therefore contended that the instructions of the Circuit Court of Rankin county were erroneous, that the decision of the Court below should be reversed, and a venire de novo be awarded.
    
      Mayes and Clifiton, for appellee.
    The first question for discussion is, can the Mississippi and Alabama Railroad Company take an estate in fee for the purposes of a banking-house ? We contend they cannot.
    The first section of the charter incorporates the subscribers for stock, their successors and assigns, &c. a body politic, to have perpetual succession, and provides that “ the said company shall be capable in law of purchasing, accepting, holding, selling, leasing, and conveying estates real, personal and mixed, to the end and for the purpose of constructing and erecting a railroad from the town of Jackson, in the State of Mississippi, to the city of Mobile, in the State of Alabama, and for the purposes hereinafter mentioned.” Acts of 1836, p. 153.'
    The purposes thereinafter mentioned are set forth in the 11th sec. p. 158, 18th sec. p. 163, 23d sec-, p. 154, and 25th sec. p. 165. The eleventh' section confers power to construct lateral railroads. The other sections empower them to exercise banking-powers and locate a principal banking-house, and limits the banking powers to the term of thirty years.
    The power to purchase estates is not given without limit. If there were no restrictive words the power would only exist to the extent necessary to effect the purposes for which it was conferred. Angelí & Ames on Corp. p. 59, 60. The charter, however, restricts it, and confines it to the purchase of such “ estates, real, personal and mixed, to the end and for the purpose of constructing and erecting a road from the town of Jackson, in the State of Mississippi, to the city of Mobile and State of Alabama, and for the purposes thereinafter mentioned.”
    Now what estates in land were necessary for the purposes of erecting and constructing the road, and for the purposes aftermen-tioned.
    The word estate signifies the quantity of interest of the tenant. 1 Tomlin’s Law Diet. 671, title “Estate ” ; 2 Bl. Comm. 103, 104.
    Then they may acquire, under the words empowering them to purchase estates real, such interests in things real as may be necessary for the purposes specified. As to the road, an interest in fee was necessary, because the corporation in that respect was to be perpetual.
    
      For banking purposes, an estate, for years only was necessary, as the banking powers were but for a term.
    This -view of the subject derives additional force from the fact that they are expressly empowered to hold the estates required. And the legislature could not have intended that they might hold estates for banking when they had not power to bank. The word estate is a technical term, and must be introduced in its technical sense, there being nothing in the charter to show that it was otherwise intended.
    2d. Whether a sale under execution is valid without such advertisement as the law 'requires, I leave for the decision of the Court, without remark. Had the sheriff’s deed or return recited that advertisement had been made according to law, it would have been prima facie evidence of the fact. Drake, et al. v. Collins, 5 How. 256. He does not so recite, but only states that he had.given thirty days’ previous notice ; but how, to whom, or where, does not appear. The statement would be true if he had merely proclaimed at the Court-house door, that he would make such sale, or had written a letter to the plaintiff communicating that information.
    3d. The deed shows what was sold. It was all the defendant’s interest in the premises. Whether that interest was an equity, a naked possession without the right of possession or of property, an estate for years, or in fee, does not appear-. Such a sale is invalid. 2 J. J. Marshall, 33, Wolford v. Phelps; 2 Caines, Rep. 61, Simonds v. Gatlin. The principle upon which the case of Jackson v. Roosevelt, 13 Johns. R. 102, was decided, is as applicable to the present case as to that.
    4th. It not appearing that Shelton or Hargis had title, their deeds conveyed none to the Railroad Company, and consequently the sheriff’s deed conveyed none'. The whole deeds, taken together and in connection with the other evidence, not tending to show a right of entry in the lessee of the plaintiff, they were properly excluded.
    If each one of the reasons assigned for the exclusion cannot be sustained, nay, if no one can, yet if the deeds should have been excluded, this Court will affirm. ■
    
      Cocke and Evans, in reply.
    To the first part of the second charge, to wit: “ The return of the sheriff does not, nor does the deed from the sheriff, show legal advertisement,” it may be said, in addition to the brief filed by the appellant, that it is unnecessary that the return of the sheriff or that the deed should show any advertisement at all. That which the law presumes, need not be expressed. Again, if the return or the deed show that advertisement was made, the presumption of law is, that the advertisement was according to law, unless the return or the deed show something which rebuts the presumption. This presumption cannot be rebutted by any omission in the return or deed ; but it can be rebutted only by something which is affirmatively shown in the one or the other. Thus, when no advertisement is mentioned, the presumption of law is that advertisement was made according to law. If it be mentioned simply that advertisement was made, the same presumption of law follows, to wit, that it was according to law. So, if it be mentioned that the advertisement was made for thirty days, the same presumption follows; but if it be mentioned that advertisement was made for ten days, then the presumption of law that it was according to law is rebutted ; because the law requires advertisement for thirty days.
    Presumption of law in favor of sheriff’s, but against tax collector’s sales. •
    To sell land under executions is one of the ordinary and peculiar duties of the sheriff. It is a merely ministerial act, performed in obedience to a command issuing from a court of competent jurisdiction. In the performance of this act as well as of all others merely ministerial, the law always regards its officer as a faithful servant, performing all his official acts according to the strict letter of his duty ; thus when he returns on a writ of capias ad responden-dum “ executed,” the law presumes that the execution was according to the mode pointed out by law. This presumption in favor of the officer must necessarily exist; otherwise endless confusion would be introduced into judicial proceedings.
    To sell land for taxes, orto sell under a special power, is not the ordinary duty of the tax collector, or of the special agent, by law. The law presumes that taxes will be paid without a sale of property; and hence it does pot allow the tax collector to sell until several circumstances concur, such as assessment, failure to pay, advertising in a mode prescribed, &c: &c., all of which together, are necessary to a sale. If the sale be made when one of these prerequisites is wanting, it is not valid'; because the concurrence of them all is necessary to bring the land within the jurisdiction of the selling power of the officer. These prerequisites, when compared with sales by the sheriff, stand in the place not only of the execution hut also of the judgment; and the tax collector’s power to sell, in the place of the jurisdiction of the Court. A sale under an execution based on a judgment of a court which had no jurisdiction, passes no title. A sale by a tax collector without the concurrence of all the prerequisites set forth in the act conferring the power, passes no title. The reason is the same in both cases. The land is not brought within the jurisdiction (if we may so speak) of the sheriff in the first place, because the judgment is void ; it is not brought within the jurisdiction of' the tax collector, in the second place, because the prerequisites required do not all concur, —these prerequisites constituting by law the judgment under which the tax collector sells. In a judgment, if any one requisite be wanting, as for instance, service of process on the defendant, the Court has no jurisdiction, and the judgment is void, and a sale under it passes no title. So, if any one requisite necessary to a sale for taxes be wanting, the tax collector has no jurisdiction, and a sale passes no title. The jurisdiction of the Court is always inquirable into, and it must always appear. So the jurisdiction of the tax collector is always inquirable into, and hence all the prerequisites necessary to give validity to a sale must appear affirmatively, that his jurisdiction may be seen. In deducing title from the sheriff, the execution and judgment must be shown. In deducing title from a tax collector, the judgment under which he sells, to wit, the concurrence of the circumstances required by the legislature to authorize a sale must be shown. /
    
    The presumption of the law being in favor of the tax payer, that he will pay his taxes without sale, is of course against the tax collector’s sale, and is, that he had no right to sell; and this presumption in favor of the taxpayer, and against the tax collector’s sale, makes jt necessary that the latter should show affirmatively and strictly, the existence of all those circumstances which rebut the presumption of law in favor of the payment of taxes withput a distress or sale.
    As to all other officers who act under a special power, it may be said that the acts to be done by them do not form a part of the ordinary duties of an officer of the law. The power being special and temporary, forbids the extension to them of the presumption of law in their favor, and hence they must show that their acts are in conformity to the power or letter of attorney under which they are done.
    In the present case, however, the defendant, Tidence Lane, cannot question the regularity of the sheriff’s acts. He is a mere stranger, in nowise connected with the judgment and execution under which the plaintiff claims. If the sheriff did sell without advertising, Tidence Lane has no right to complain about it. Either the plaintiff or the defendant in the judgment at law under which the property was sold, might complain of such an irregularity, and have the sale set aside and a resale made ; but a mere stranger, without any interest in the judgment, or the sale under it, can say nothing. Creditors of the defendant might complain in a Court of equity of a sale under the judgment, if they could show that the property was sold at an undervalue, by the fraudulent conduct of the parties, plaintiff and defendant; but a mere stranger has no right to open his mouth.
   Mr. Chief Justice Sharkey

delivered the opinion of the Court.

The plaintiff brought, this action of ejectment to recover several lots of land in the town of Brandon, which had been sold at sheriff’s sale as the property of the Mississippi and Alabama Railroad Company. The plaintiff introduced the judgment in favor of the Real Estate Banking Company of Columbus, and also the execution and sheriff’s return. He then offered to read a deed from Shelton to the Mississippi and Alabama Railroad Company for part of the lots, and also one from Hargis for the others. A deed from the sheriff of Rankin County to Richard Evans the purchaser, and a deed from Evans to Cocke, were also offered in evidence. To the admissibility of these several deeds the defendant made the following objections, to wit.

First, “ That the Mississippi and Alabama Railroad Company could not purchase or own lands for the purpose of a banking-house, or for any other purpose, except those mentioned in the charter.”

Second, “ That the returns of the sheriff did not, nor did said deed from the sheriff show legal advertisement, nor what estate was sold or conveyed, whether an estate for years, for life, or in fee.”

Third, <£ That it did not appear by said sheriff’s deed and levy, that the Mississippi and Alabama Railroad Company had such a title as could pass by sheriff’s deed.”

Fourth, “ That under the circumstances above stated, no valid sale of the premises by the sheriff had taken place, and that the said Richard Evans thus purchasing, acquired no valid title to the said premises.” The Court decided that these objections were well taken, and refused to permit the deeds to be read in evid’ence ; and the correctness of this decision is now the matter to be determined.

First. By the charter it is declared that the ££ Company shall be capable in law of purchasing, accepting, holding, selling, leasing, and conveying estates, real, personal and mixed, to the end and for the purpose of erecting a railroad from, &c. and for the purposes hereinafter, mentioned and by the 23d section, power was conferred of selecting a suitable place for a banking-house. These provisions are certainly broad enough to entitle the corporation to hold real estate for the purpose of erecting thereon the bank buildings. But for anything that appears in the record, the lots sold by the sheriff may have been necessary for railroad purposes.

Second. It is next insisted, that neither the return of the sheriff nor his deed,.show legal advertisement, nor what estate was sold or conveyed. Admitting that it was incumbent on the plaintiff to prove that the sheriff had advertised according to law, still we are satisfied that this fact is susceptible of proof by other means than the return or the deed. The advertisement is a'matter in pais, and it was competent to prove it by parol or by introducing the advertisements. But this objection is not sustained by the record ; the deed does recite the levy, and that the property levied on had been advertised for thirty days. If a recital can prove anything, it proves in this instance, the advertisement of the time and place of sale for thirty days, and that the sale actually took place. Was it necessary that the return of the sheriff should have shown what estate or interest was sold ? The deed conveys to the purchaser an estate in fee, and if that is to be taken in connection with the return, it does appear what estate was sold. The return of the sheriff was admitted without objection ; its legal sufficiency is therefore the only thing that can now be questioned. The authorities introduced in support of the position that the sheriff’s return must specify the quantity of interest, or the estate sold, are very unsatisfactory in settling any principle which can be applicable in the present case. The case of Wolford v. Phelps, 2 J. J. Marshall, 31, was a bill filed by a purchaser at sheriff sale, to get relief from his bonds given for thc purchase-money. The land sold was subject to a mortgage ; and the mortgagee, who was also the execution creditor, was present at the sale, and remained silent as to his mortgagee lien ; and the Court held that this was a fraud upon the purchaser, and refused to permit him to coerce payment of the bonds. The Court did say that the sheriff ought to discriminate in his return between a sale of the absolute tille and a mere equity of redemption ; but the Court did not say that for want of such discrimination, his sale was either void or voidable. The statutes of Kentucky seem to have had a bearing in this decision, and it may therefore be considered in a great degtee as inapplicable. But even here it might be said with great propriety, that when mortgaged land is' levied on the sheriff should discriminate, for this reason ; the equity^of redemption is a thing wholly different from the unconditional title, and assuming that an equity of redemption is the subject of a levy, it could only be levied on and sold as an equity of redemption. But I know of no rule or principle which requires a sheriff to return that he did not levy on an equity of redemption, but on the fee. In the case of Simonds v. Catlin, 2 Caines, Rep. 61, the sheriff returned that he had sold all that tract of land in the town of Pompey, in said county, in the occupancy of the defendant. The Court were of opinion that a more definite description of the situation and1 amount of the land, and of the quantity of the defendant’s interest therein, ought to have been stated. The great objection seems to have been to the generality of the description. The Court do not say that a return which omits to state the particular interest of the defendant, is for that reason void. The question was, whether a return so uncertain was a sufficient note or memorandum in writing to take the case out of the statute of frauds, and the Court thought it too uncertain for that purpose, construing it by the rule applicable to deeds ; and this was all that the Court decided on that question.

By the laws of this State, a fieri facias may be levied on the land as well as the personal property of the defendant, the officer being bound to take personal property in preference to land, if it is tendered. This establishes the general rule, that all the defendant’s land may be sold. To this rule there may be exceptions, and if land or an interest therein has been sold and conveyed by deed in fee sample, which was not liable to such sale, and therefore constitutes an exception to the general rule, it lies with the defendant who resists the validity of the sale, to show that the defendant had not such an interest as could be sold ; the ownership of the defendant being of course first established by the purchaser. The sheriff in this instance returned, that he had levied on certain town lots, particularly describing them which he had sold. By this it is to be understood that he sold the fee simple, and his deed is to that effect. We think then, that by the return, and also by the deed, it does appear what interest was sold.

Third. That it did not appear by the levy and the deed that the corporation had such a title as could pass by the sheriff’s deed. This objection we answer by repeating, that from the return it is to be understood, that the fee simple was sold. If the corporation had a less estate, then the purchaser gets only the interest of the corporation. The ownership was traced to the corporation ; if it had only such an interest as could not be sold under the execution, then it devolved on the defendant to show it, and thus to defeat the sale. It does appear affirmatively, from the deed, that the sheriff sold the fee simple.

It is not necessary to determine whether the purchaser takes an interest of greater duration than the existence of the corporation ; he is certainly entitled to whatever interest the corporation may have had, if it was the subject of sale.

Fourth., The last objection, that under the circumstances no valid sale was made, and that the purchaser acquired no title, is fully answered by the preceding remarks ; and we are of opinion that the Court erred in excluding the deeds, and that the judgment must be reversed, and the cause remanded.  