
    Loyd vs. Anglin’s lessee.
    
    Where land is sold by virtue of a judgment and execution, without advertising in the manner prescribed by the act of 1799, ch. 14, the sale by the express provisions of that act is utterly void, and passes no title to the purchaser.
    Where the sheriff’s return, and the recital in his deed, stated that land sold by virtue of an execution was advertised according to law; it was held, that parol evidence was admissible to show that the land was not advertised, or not advertised in the manner required by law.
    This was an action of ejectment, prosecuted to recover a tract of land purchased by the lessor of the plaintiff below, at sheriff’s sale; the land being sold as the property of Beverly' Harris, who was not in possession of the land when it was sold.
    On the trial, the defendant proved by the sheriff who sold the land, that he did not advertise the sale of the land under the writs of venditioni exponas, at the court house door, or at any other public place in the county; that the only advertisement he made, was in the National Banner, a newspaper printed at Nashville; that he never saw the advertisement in but two numbers of the paper, which were of the 3d and 6th of September, 1833, and in each of them there was no day specified on which the sale was to take place; that he .wrote to the Editor to in-, sert the day of sale, but never saw the advertisement in any subsequent number of the paper, and that it did not appear in the paper of the 13th of September, 1S33. The sheriff’s return, and the recital in the deed, states that the land was advertised according to law.
    This testimony was afterwards withdrawn from the jury by the court as illegal, and the court told the jury, m substance, that Loyd could .not take advantage of any irregularity in the advertisement and sale of the land by the sheriff, and that it was not competent to look beyond the return of the sheriff on the execution, or orders of sale, and the recitals in the deed.
    
      
      Charles Ready, for plaintiff in error.
    The act of , , , , 1799, cb. 14, declares all sales on execution, made contrary to its provisions, absolutely null and void. In this case Harris was not in possession, and the evidence that the land was not advertised, as required by that act, was clearly admissible, otherwise the provision itself would be of no avail. The case of Trott and M’Broom vs. M’Gavock and Gordon’s lessee, (1 Yerg. Rep. 469,) is decisive of this question. The court there decided, the execution sale to be illegal and void, because the requirements of the statute were not pursued.
    The illegality of a transaction may always be shown by parol proof, although the proof may be contradictory to the deed or written agreement of the parties, as in cases of usury, stock jobbing transactions, gaming, &c. 
    
    
      A. J. Hoover, for defendant in error.
    1. It is insisted by the opposite counsel, that the court below erred in excluding the evidence of the sheriff and other parol testimony impeaching the recital in his deed. The authorities show there was no error in this respect. A surveyor, whose plat is of record, cannot be called to invalidate his own act. 2 Ten. R. I and 2. In Rex vs. Elkips, 4 Bur. R. 21, 29, the sheriff had returned the defendant “guilty of a rescue,” and the court of King’s Bench held that the return could not be traversed. In Love vs. Smith, 4 Yerg. 125, this court held that the sheriff’s return could not be contradicted, although he was a party to the suit. The sheriff’s recital in his deed is no less his official act upon oath, than his return upon a fi. fa., and ought equally to be protected from impeachment in a collateral proceeding. It is upon principle and policy, that the sheriff’s recitals in his deed cannot be impeached by parol evidence. 3 St. Ev. 995. No legal title passes by sheriff's sale until a deed is executed. The sheriff’s deed is appointed by law as the evidence of the purchaser’s title, and it cannot be varied by parol testimony. 3 St. Ev. 997, 1002, 1043. The sheriff’s deed to Anglin is per se evidence of title in him, and parol evidence is inadmissible to contradict it. 19 John. R. 49: 17 John. R. 167: and 12 John. R. 427. In Trott vs. Gordon and M’Gavock, it'was not recited in the sheriff’s deed that the twenty days notice had been given. 1 Yerg. 469.
    2. The opinion of the court below, that the act of 1813, ch. 103, sec. 2, is merely directory, is correct. The failure of the sheriff to comply with an act of the legislature merely directory to him, will not vitiate the title of the purchaser; which doctrine seems to be recognized in Trott’s case. 1 Yer. 469. See, also, 5 Yer. 299: 3 Yer. 1.
   Green J.

delivered the opinion of the court.

The act of 1799, ch. 14, sec. 1, provides, that the sheriff who may levy an execution on lands when the defendant is not in possession thereof, shall advertise the same in some newspaper in the State, at least three different times, describing particularly the lands and tenements levied on, and mention the name of the plaintiff and defendant, and the time and place appointed for the sale thereof. The second section declares, “tharevery sale of land under execution, made contrary to the provisions of this act, shall be null and void to all intents and purposes.”

It was decided by this court, upon another provision of the statute, which directs the sheriff to give the owner, if in possession of the premises, twenty days notice of the sale, that a failure to comply with that provision of the act, on part of the sheriff, was fatal to the title of the purchaser, and that such sale was utterly void. Trott and M’Broom vs. M’Gavockand Gordou’s lessee, 1 Yer. 469. 11ns decision has been followed by the court ever since, and several cases have been determined in accordance with it. Rogers vs. Jennings’ lessee, 3 Yer. 308. In the case now before the court, therefore, there is no question but that the sale is utterly void, and passed to the purchaser no title whatever, if the land was not advertised as required in the^act.' But the circuit court, it seems, without controverting this proposition, was of opinion that the sheriff’s return was conclusive, and that no evidence could be heard to prove the failure to advertise in contradiction to the sheriff’s recital in the deed. This opinión was founded on a principle of law, that, as a general rule, it is incontrovertibly settled, that parol evidence is not admissible to contradict a deed. But the legislature have aright, by statute, to make an exception to this, or any other rule of the common law; and if they have done so, either by direct enactment,, or by a provision which would otherwise be inoperative and ineffectual, it is the duty of the court to carry into effect such statute, in disregard to the common law principle, that may be prostrated thereby. If the evidence which was rejected in this case cannot be leT gaily heard, by what means, it may be asked, can a party avail himself of the benefit of the act. The act was intended to guard the freehold, and to protect the owner of the land from having it taken away without his knowledge, and without giving him an opportunity of either discharging the execution by the payment of the money, or of laying off the tract in lots, so that no more should be sold than a sufficiency to pay the debt. But if it be determined that a sheriff may exclude all evidence upon the subject, by reciting in the deed that the notices were given according to law, he may at pleasure defeat the object of the legislature, and take from a party his land without his knowledge, and without competition among bidders. It is no answer to say, that the sheriff would be liable in an action for damages for such gross neglect of duty. That tedious and expensive remedy is not the one contemplated by the legislature. It has said the sale shall be void. The purchaser must take care as to what he buys, and must, at his peril, know that the sheriff has done his duty, and that the sale will be valid.

It is manifest, therefore, that in carrying into effect the intention of the legislature, it is indispensable that proof of a failure on part of the sheriff to advertise the land as required by the act, must be received, notwithstanding the recitals in the deed may be contradicted thereby. In rejecting this proof, we think the circuit judge erred; for which the judgment must be reversed, and the cause remanded for another trial.

Judgment reversed.  