
    Simmons and Whyte vs. Wood’s lessee.
    
    An execution issued move than ,a year and a day after the judgment was rendered is not void, but voidable at the instance of the defendant in execution only, and a sheriff’s sale under such execution will communicate a good title against the defendant, and creditors claiming under him by executioii sale.
    The act of 1799, ch. 14, does not change the common law, as between debtor and creditor.
    A purchaser at an execution sale of land, sold under a judgment rendered after the sale to another by a previous execution, cannot challenge the title of the first purchaser, because the sale was made after the year and a day had expired from the rendition of the first judgment.
    The evidence of a service of a scire facias must appear from the return made upon the scire facias by the sheriff; a statement by the clerk that it was served, is no evidence of that fact in an action of ejectment.
    When several scire faciases issued against defendant, on which a judgment was rendered, and the land descended sold, the record must set out each scire facias, and the endorsements thereon.
    A judgment upon scire facias against heirs, condemning the lands descended to be sold, is void, unless notice to the heirs was given.
    A purchaser at execution sale of an undivided moiety of land, cannot have a general verdict for the whole land, nor can he turn out the tenant; he can only enter as tenant in. common, and have partition made, if ho desire to hold in severalty.
    
      The plaintiff below in deraigning his title, after reading a grant from the State of Tennessee to Jenkin White-side for the land in controversy, produced a record of the proceedings and judgment in the case of Lawrence Brown vs. Jenkin Whitesides’ administrator and others. He also produced the record of a judgment founded upon a scire facias against the heirs of Jenkin Whitesides. Said record does not give any copies of the several scire faciases issued against the heirs of Whitesides. The first is given, which was against thirteen heirs of Jenkin Whitesides, and is endorsed by the sheriff “served on three of the heirs of Jenkin Whitesides.” There is no other evidence in the record, other than the statement of the clerk, that the other ten heirs of Jenkin White-sides 'ever were notified. There is a judgment against all the heirs jointly, for the land descended from their ancestor. No execution issued upon this judgment until after a year and a day had passed, when the execution under which the lessor of the plaintiff, Wood, purchased the land in dispute was sold. The lessor of the plaintiff then read a deed from the sheriff to him for the land in dispute, and proved the defendants in possession at the time the suit was instituted. The defendant, Whyte, read the record and proceedings of a judgment against the heirs of Jenkin Whitesides, rendered after the, sale and purchase by Wood, and a deed from the sheriff to him for the land. The court charged the jury that the title of Wood was sufficient to authorize a verdict in his favor, if they believed that defendants were in possession of the land at the time the suit was instituted. The jury found for the lessor of the plaintiff; the court refused a new trial, and defendant appealed in error to this court.
    
      D. Fentress and T. Washington, for the plaintiffs in error.
    The' court below erred in charging the jury, that Woods’ title was sufficient for them to render a verdict. .First, because his title was founded on a sale under an execution that was issued more than twelve months after judgment. The law makes sales under execution so issued void, Act of 1799, ch. 14, sec. 2: 1 Yerg. Rep. 469: Trott and M’Broom vs. M’Gavock, and cases there referred to.
    The preamble to the act of 1799, ch. 14, plainly shows the evil intended to be remedied thereby, and this case comes directly within its purview and meaning.
    The intention of the legislature must be obeyed by the courts. 2 Cranch, 380: U. S. vs. Fisher, et al.
    
    Where the law declares a thing void, the same is imperative, and the courts are only the organ by which it is pronounced. 1 Yerg. Rep. 480.
    Titles acquired contrary to the acts of assembly, are cut down by statutes declaring them void. 1 Wheaton’s Rep. 115, Priston vs. Browder: Banford’s lessee vs. Thomas, 1 Wheat. Rep. 154.
    Said proceeding was also void as to some of said heirs, because it does not appear that they were before the court.
    It was void as to such as were before the court, because there was no such judgment against the administrator as the scire facias purports to be founded on.
    There is nor ecord of any scire facias, except that issued to Davidson county, which was only served upon part of the heirs.
    There was no such judgment produced as that recited in the scire facias.
    
    The circuit judge charged the jury upon the effect of the evidence.
    The judgment under which the plaintiff claimed was dormant before any execution issued upon it; and no execution could legally issue without revival. Hess vs. Sims, 1 Yerg. Rep. 143.
    
      A. Miller, for the defendant in error.
    The principal objection made by the counsel for the plaintiffs in error, is, that execution had not issued on the judgment on which defendant relies, within .a year after its rendition; therefore the sale to Wood under that execution was void. This is not a good objection against the defendants.
    An execution issued and levied on land more than a year after the rendition of the judgment, is voidable but not void. See Mar. & Yerg. Rep. Overton vs. Perkins and others, 367.
    The rule of reviving judgment above a year old, by scire facias, before execution, was intended to prevent surprise upon the defendant; therefore, on motion to quash an execution issued after a year, the plaintiff in the execution might show that the delay was caused hy defendant. Tidd’s Pr. 1006-7: 2 Bur. Rep. 66.
   Catron, Ch. J.

delivered the opinion of the court.

The first objection is, that an execution issued more than a year and a day after the judgment was rendered, is void, and a sheriff’s sale by virtue thereof communicates no title to the purchaser. This position cannot be sustained hy the rules of the common law. 8 John. R. 361: 13 John. 557, and authorities there cited, show the true rule. Nor does our act of 1799, ch. 14, change the common law, as between debtor and creditor. Overton vs. Perkins, Mar. & Yerg. 367. Whyte’s judgment was rendered after the sale to Wood, and cannot challenge it, because the sale was made after a year and a day.

The next material position assumed is, that the clerk gives no copies of the different writs of scire facias issued on Lawrence Brown’s judgment, under which Wood claims, save as to the first, upon which the sheriff of Davidson returns, that he had served it on three of the heirs of Jenkin Whitesides, the intestate; that there were thirteen heirs named in the first writ of scire facias, and there is judgment against all of them jointly, for the lands descended from their ancestor; and there is no evidence as to ten 0f them, that they were notified, other than the hislorical statement oí the clerk.

So js the fact. The clerk ought to have given copies of the different writs of scire facias, and. the endorsements thereon. This is record evidence, not subject to be proved by the statement of the clerk, in brief memoranda, that such is the fact. Barry’s lessee vs. Rhea, 1 Ten. Rep. 345. There was no evidence before the court, that ten of Jenkin Whitesides’ heirs had been notified to appear to the suit by scire facias against them; and a judgment without notice to the heirs is void, the court having no jurisdiction of the persons of the defendants. Roberts vs. Busby and wife, 3 Hay. Rep. 299: Combs and Haynie vs. Young’s heirs and administrator, 4 Yer. Rep. 218.

As to ten of the thirteen heirs, therefore, the judgment, éxecution, and sale had no effect, and divested no title, and Wood could not recover their interest.

Whether the. judgment is void for the whole, we will not now take it upon us to decide, as it may be all the heirs have in fact been notified, and that this can be shown on another trial. Were it otherwise, a general verdict cannot be had for the lessor of the plaintiff, when he can only recover, by the strength of his own title, a part of the land sued for.

This court held, at Sparta, in 1829, in Williams’ lessee vs. Norman, that when a purchaser at execution sale was only 'entitled to recover an undivided moiety, he could not have a general verdict for the whole land, nor could he turn out the tenant, but must enter as tenant in common, and seek partition, if he desired to hold in severalty. The circuit court having held, that a good record title existed in the lessor, Wood, to recover the whole labd, the judgment must be revérsed, and the cause remanded for another trial.

Judgment reversed.  