
    TEUBNER vs. MOLLER.
    A sheiiff’s deed may be impeached and set aside for fraud, by a proceeding upon bill ia chancery.
    ' APPEAL EROM GASCONADE CIRCUIT COURT.
    Frissell for appellant.
    1. That there is no equity in the bill, and the demurrer should have been sustained.' If the sale did take place on the 24fh ofSeptember, when the land was advertised for sale on the 23d, and the sheriff in the recitals in his deed states that the sale took place on the 23d, the remedy of Moller was against the sheriff on his bond. If the recital in the deed be false, evidence is not admissible to controvert it, as between Moller and Teubner. Stat. of 1845, p. 484, sect. 49; Philip’s evidence, (Cowen and Hill) part 2nd, 1086, 1087, 10945; 7 Mass. Rep. 382, 392; 13 ib. 483; 4 ib.47S; 9 ib. 95.
    That even if the judgment was satisfied, still Tuebner’s title is good, unless he had notice of the satisfaction. In this there is no averment in the bill, Reed vs. Austin’s heirs, 9th Mo. Rep. 721.
    That Moller has no right to complain of the inadequacy of price; for fay his own act he had embarrassed the title. At the time of the saie there were two deeds on record for those lots One from Mol)er himself, and another from the sheriff.
    Skinner for appellee.
    1. A sale of real éstate by a sheriff, made after the day to which the writ is returnable, is void and passes no title to the purchase. Simms vs. Randal, 2 Vol. Bay’s Rep, p. 524; McFarland'vs. Wilson,'et al. 2 Vol. Smede’s and Marshall’s Rep. 269; 3 Smede’s and Marshall’s Rep. p. 468. Revised Statutes, 1835, title execution, sec. 39; also same statute for 1845, title execution, sec. 41.
    2. A return of satisfaction on an execution, extinguishes the lien of the judgment upon which the execution issued, so that properly subsequently sold under another execution on fhe same judgment, is not subject to it or bound by such sale. Parks vs. Person, 1 Smede’s and Marshall Eep. 76;
    3. When more property is sold under an execution than is sufficient to satisfy the execution, and the property could have been sold in parcels, the court will set aside such sale. 7 Mo. Rep. 346.
    4. A direct application' to the court fay motion, and notice to the opposite party, &c., would not have sufficed in this case; because the deed purported that the sale took place on the 23d September, 1846, and in pursuance of the command of the writ, and in conformity to the advertisement; whereas, in fact, these reci tations were false, but could not have been questioned in any collateral proceeding; but a bill in chancery to set aside said deed for the fraud, is the only and legitimate remedy.
    5. And admitting that a motion in the manner aforesaid would have been a proper remedy, yet I contend that a bill in chancery is also a concurrent remedy; because fraud gives the Chancellor jurisdiction in all cases, and the hill charges a fraudulent combination between the appellant and the sheriff, and as to whether this allegation was proven or not, this court will presume that the same Was proven, as the evidence is not preserved in the record, in which case this court will presume that all things were proven which were necessary to have been proven in order to a decree in the court below.
    0. That a bill in equity is a legitimate remedy in this case. 3 Chan. Rep. p. 57, 58, 22. Also a bill may be brought to set aside a conveyance by deed and fine, if indirectly gained. Woodhouse vs. Brayfield, 2 Ver. Rep. 307; yet it is a principle of law that there can be no averment in contraction of a fine, 5 Vol. Ciuise, p. 80, sect. 60.
    7. It is no objection that this bill whs dismissed as to Wyatt at tbe return term, when there was a return of no service as to him and the appellant; because Wyatt had no interest or title in him to be affected, and because this cause is justified by statute, 1845, p. 838, sect. 161
    8. It is no objection that parol evidence was introduced to contradict the recitation in the sheriff’s deed, that the land was sold on the 23d of September, 3846, because the Bill charges fraud in the transaction, and this species of evidence was the only evidence that could have been adduced to prove that fact, since there was no record evidence; and in any other proceeding the recitals could not have been contradicted.
    9. The decree cannot be reversed, because the evidence was not preserved in a bill of exceptions . Nor did tbe appellant move in arrest of judgment or for a new trial; nor did he ask any instructions in the case. If this proceeding by bill in chancery is not the remedy that should have been adopted, the appellant should have demurred; and if the court erred-in overruling the demurrer after a decree, the appellant should have then moved in ariest; and if the court overruled the motion in arrest, then to have excepted, &c.
    
      Arrott for appellee.
    The suit was properly brought by bill in chancery.
    On a bill brought in equity, charging fraud in sheriff’s sale, the court entertaining the bill decreed a re-conveyance, &c. Viner’s abridgment, title sheriff s’ sales.
    It is no objection that parties to a fraud have their remedy at law; for in cases of fraud the court of equity has a concurrent jurisdiction with the common law, matter of fraud being the great subject of relief there. 2d Piere Williams, 225; 7 Johnson’s chancery Rep. 194.
    Sheriff’s sale and deed remedy of party injured by summary application to the court under whose process the officer acts, or by bill in equity. Jackson vs. Roberts, 7th Wendel R. 83.
    Inadequacy of price, coupled with circumstances which show oppression, will be regarded as fraud, and entitle a party to relief in equity. Holmes vs. Frisb, 9 Mo. Rep. 201.
    
    Courts of equity in this State are not confined in their jurisdiction to cases in which adequate relief cannot be had at law. Clark and wife vs. Henry’s adm’r.; 9 Mo. Rep. 339.
    2d. That the evidence was properly admitted by the court below.
    In courts of equity a distinction has been taken between evidence that may be offered to a jury and to inform the conscience of a court, viz : that in the first case no parol evidence could be admitted to control a deed ; because the jury might be inveigled (hereby, but in the second case it could do harm, because the court were judges of the whole matter, and could distinguish what weight and stress ought to be laid on such evidence. 2d Ver. Chan. 98; Harrison’s Chan. Practice, Vo). 1, 543.
    Equity relieves against mistake, as well as fraud, in a deed or writing, and parol evidence 83 admissible to prove the mistake, though it be denied in the answer; Gillespie vs. Moore, 2 Jon. Chan. Rep. 585.
    3d. The decree rendered below is just and equi,table.
    No title vests in a purchaser when the sheriff acts without authority. Carter vs. Simpson, 7 Johnson’s R. 535.
    The latest period which the law allows for the return of an execution, is the day on which it is returnable. Vail vs. Lewis, 4 Jon’s. Reps. 450. An execution cannot be executed after the day on which it is returnable. 2 Chan. Rep. 243.
    A purchaser under persons authorized by statute to sell, is presumed to know the nature and extent of the authority, and purchases at his peril. Downing vs. Smith, 3 John. C. R. 332, 344.
    Though a party has paid the purchase money, yet if he had not in fact paid it before notice, it is not sufficient to sustain the character of a bona fide purchaser for a valuable consideration without notice. Jewet vs. Palmer, 7 Johns. C. Rep. 65.
    A court of equity will set aside a sale made under execution, when the sale is tainted with fraud or infected with other vices which render it inequitable that it should stand. Reynolds vs. Meyer, 1st Freeman’s Chan. Rep, 462.
    If property sold be not capable of delivery, the sale transfers to the purchaser. No title to the property sold, unless the officer in the levy and sale conform strictly to the requisitions of the law. 67 Mass. R. 240'
   Judge Birch

delivered the opinion of the court.

The bill in this case alleged a fraudulent combination between the •sheriff of Gasconade and the plaintiff in error (defendant below) in the sale and purchase of certain real estate, under an execution against the plaintiff below, (appellee here) and prays therefor that the pretended sale be declared void, and the property re-conveyed to him.

The fraudulent collusion is alleged to have consisted in advertising the sale to take place on the 23rd of September, 1846, selling the property on the 24th, and making the return upon the execution and the recitals in the deed conform to the day of the advertisement, instead of the day of sale.

The sheriff was originally included as a party, but the bill was sub« sequently dismissed as to him, and a decree for re-conveyance entered against the other defendant.

As the testimony in the case, upon which the decree seems founded, does not appear in the bill of exceptions, the question presented by the demurrer is the only one properly before us by the record.

The statutory enactments, that the recitals in such a deed are to be regarded as “evidence of the facts therein stated,” and the general doctrine that they cannot be impeached in a collateral proceeding by the defendant in the execution, deemed inapplicable in a case like the present. Here, fraud is the very gist of the action; and we cannot conceive a cause of proceeding better adapted, as well to redress the particular wrong complained of, as to remove all subsequent cloud from the title to an estate, alleged thus wrongfully to have been sold and deeded away, for a sum merely nominal in comparison with the real value.

The suit, therefore, seems to have been properly brought, and no reason appearing upon the record why the decree should be disturbed,, it is affirmed.  