
    James R. Enloe vs. William R. Miles et al.
    Without special authority conferred hy statute, a sheriff cannot postpone his sales from day to day; if he do so, and sell on the postponed day, without giving full advertisement for the time required by law, the sale will be illegal ; and a purchaser who has notice of the irregularity of the sheriff, in. thus postponing a sale, will acquire no title hy his purchase thereat.
    Therefore, where the real estate of a defendant in an execution has been levied on, and advertised for sale on Monday ; and sold on that day, to one who failed to comply with the terms of sale; and the sheriff, on the forfeiture of the bid, postponed the sale until the ensuing Saturday, on which day he sold the property; and the statute did not authorize the postponement; and the defendant in execution filed his hill against the purchaser, to set the sale aside, and offered to refund the amount of the bid ; held, that he would be entitled to a decree, vacating the sale on his paying the purchaser the amount of money paid by him, in consequence of the purchase, with the interest accrued thereon, and legitimate charges.
    
      On appeal from the district chancery court of Carrollton; Hon. Henry Dickinson, vice-chancellor.
    On the 30th of April, 1844, James R. Enloe filed his bill, in which he alleges, that in January, 1838, Charles L. McGehe obtained a judgment in the Holmes circuit court against him for $1738-63, which was bonded with James Hurst as his surety; that Hurst agreed, for a consideration paid him by Enloe, to pay this judgment, and had ample property in Holmes county for its payment; Hurst, however, failed to pay it, and an execution in the year 1841 was levied on certain lands (which are described) of complainants, which were advertised for sale on the first Monday of September, 1841; when the said James Hurst bid them off and forfeited his bid; whereupon the sheriff of the county, on the first Saturday in the October term, 1841, of the court, without having advertised the land, according to law, for sale on that day, offered the lands again for sale; complainant bid them off; but the sheriffs, without offering a title, demanded the money, declared the bid forfeited, and forthwith resold them to William R. Miles, the sheriff refusing to receive complainant’s bid, who offered for them more than Miles; that in this purchase Morgan L. Fitch was equally interested with Miles.
    Complainant forthwith, and before the money was paid by Miles, entered a motion in the court then in session (circuit court of Holmes county) to have the sale set aside; but the motion was not disposed of, because Fitch was on the bench, and was also attorney of record for the plaintiff in the execution. That both Fitch and Miles well knew that the land had not been advertised by the sheriff before they paid their bid.
    The copy of the venditioni exponas, under which Miles purchased, was filed with the bill, and was returnable on the third Monday of October, A. D. 1841; the return upon it stated that on the 22d day of October, 1841, the sheriff had exposed the land to sale, and had sold it to William R. Miles for $600. The sheriff’s deed also exhibited to Miles, recited the sale on the 22d of October.
    Miles answered the bill, denying all knowledge of the agreement between Enloe and Hurst, and of the alleged sale by the sheriff to Hurst in September, 1841; and states, that on Monday, the first day of the Oetober term of the court, the sheriff offered the Jand for sale, several persons bid for it, the principal bidders being a brother of Eñloe, and respondent; it was bid off to Enloe’s brother, and respondent paid no further attention to it until on a subsequent day of the same week, respondent heard the sheriff make proclamation at the court-house door that the bid had been forfeited, and the land was again offered for sale; respondent did not bid at this last sale, but the land was purchased in the name of Henry W. Brown for either Brown or Fitch; Brown let respondent have his bid, and at their joint request the sheriff made the deed to respondent. Fitch paid half the purchase money, and in May, 1842, respondent gave Mrs. Parmela Fitch a bond for title to half the land.
    He heard the sheriff refuse to receive Enloe’s bid at the sale when Brown bought, unless he would bid in good faith or exhibit the money, as he had already caused one purchase to be forfeited with the view of preventing a sale.
    That so far as respondent knows or has been informed, he believes the sheriff’s sale was duly and legally advertised; if it was not, he knew nothing of it at the time of purchase, and knows nothing of it now.
    Fitch’s answer was substantially to the same effect.
    1 On the 20th of June, 1845, Enloe, by leave, filed an amended bill, stating that the defendant Miles bid off the land for six hundred dollars, which was worth six or seven thousand; and that since Miles’s purchase, he had offered to remunerate him the amount of his bid and interest, but Miles refused to take it.
    Fitch answered this amendment, denying all knowledge of the offer to Miles, but admitting it. Miles made no answer; and the amended allegations were taken for confessed against him.
    H. Philips testified that 6S8 acres of the land in controversy were worth five dollars per acre.
    Armistead G. Otey testified that the land was advertised for sale on the first Monday of September, 1841; then re-advertised for sale on the third Monday in October, 1841; not sold on that day, but the sale was postponed from day to day until the 22d day of October, 1841, which was a subsequent day of the term of the first week of the court; the adjournment from day to day being by verbal proclamation from the court-house door, and not by written advertisement; that Enloe forbid the sale on the day it was sold; the witness, as deputy-sheriff, was present at the sale.
    Henry W. Brown testified that, to the best of his recollection, he did not bid for the property at the sale, and paid no attention to it.
    The cause being submitted for final hearing, the vice-chancellor dismissed the bill, and Enloe appealed.
    
      James R. Enloe, in proper person,
    made the following points: ■ L Authorities relied on to show that the court of equity has juridiction and power under the facts presented by the record in the case, to grant the relief prayed for in the bill. 5 Paige, Ch. R. 501; 3 Eng. Ch. R. 2; 3 Russell, 432; 1 Johns. Ch. R. 517; 3 S. & M. 73; 4 Rand. R. 596 ; 10 S. & M. 35; 2 Johns. Ch. R. 222; 3 U. S. Dig. 377; Freem. Ch. R. 397; Hutch. M. C. 773.
    2. Authorities relied on to show that the sale was fradulent and void, and should be set aside in equity. Hutch. M. C. 902, 910, 914, 917, 918; 2 Story, Eq. PI. 127; Fonb. and note, 171 ; 2 Johns. Ch. Rep. 51 ; 3 Blackf. Rep. 480; 9 Serg. & Rawle, R. 164; 1 Dallas, R. 442 ; 2 Har. &. Gill, 262; 2 Bailey, R.' 291; 2 Pet. C. C. R. 241; 7 Marsh. R. 392; 2 Bibb, (Ky.) R. 403; 3 U. S. Dig. 377; 2 Blackf. R. 1; 2 Caines, R. 61; 3 S. & M. 371, 763; 4 Wheat. R. 77; 6 S. & M. 117; 6 Wheat. R. 119; 3 Pet. Dig. 523; 4 Com. Dig. 234.
    3. Authorities relied on to show that the sheriff could not have kept his authority alive, to sell after the return day of the execution over, if he had advertised the sale for a subsequent day. 3 S. & M. 468 ; 3 Monroe, R. 339; l Hill, S. C. 239; 10 S. & M. 246; Hutch. M. C. 897; 2 Yeates, R. 301.
    4. Authorities relied on to show that the sheriff cannot make a company sale of several distinct and separate lots of lands as is here shown to have been done. 1 Johns. R. 501; 1 Binn. 61, 62.
    5. Lastly, complainant having offered to do equity, has shown himself entitled to a conditional decree.
    
      E. S. Fisher, on same side.
    The statute authorizing the sale of land under execution, is one in derogation of the common law, and must be strictly pursued. The power to sell land under execution is derived entirely from the statute, and receives no aid or countenance from the common law. Every requirement in the statute must, therefore, be regarded as a positive mandate, divesting the sheriff of all discretion in the premises. The statute has specified the number of days, in which land shall be advertised, and has also appointed the day of the week and month to sell land. Every man is bound to know the law at his'- peril. If, therefore, land should be sold on a day not authorized by law, the purchaser acquires no title, because he is bound to know that the law in such case was not complied with. It is a strict compliance with the law that gives validity to a sheriff’s sale of land. The land in this case was sold on a day not authorized by law. It was purchased in part by the attorney of record, who is bound to take notice of all errors in the record, and the proceedings of the sheriff. The sheriff, during term time, has not the power to adjourn sales. See acts of 1840, p. 231. If he wishes to sell land during the first week of court, on a day not the first day of the term, he should advertise for the particular day.
    
      E. L. Acee, on same side.
    1. The property in controversy was sold under and by virtue of a writ of venditioni exponas, on Friday, the 22d day of October, 1841, four days after the same was made returnable. Did the sale pass any title to the purchaser?
    A sheriff cannot receive money in payment of an execution, nor make a valid sale, after the day on which it is made returnable. .Wood et al. v. Robinson, 3 S. & M. 271, 284; Lehr v. Doe ex dem. Rogers, 3 S. & M. 468.
    
      2. The only ground upon which the appellees can rely against these authorities is the act authorizing the “ sheriffs of Holmes county to sell any property on any day during the first week of court, under such restrictions as are required by law,” &e. H. & H. 656. j
    
    On this point Mr. Acee reviewed at length, the following statutes: (H. & H. 627; lb. 633, sec. 17; lb. 652, 653, sec. 72,) and contended, that the sale on the postponed day was not valid, without a re-advertisenrent for the full length of time required by law; he also cited Lehr v. Rogers, 3 S. & M. 468; Op. of Judge Clayton in Minor v. City of Natchez, 4 S. & M. 602, 632.
    3.Fitch was attorney of record, and is chargeable with notice. Simonds v. Gatlin, 2 Cai les, R. 61; Harrison v. Rapp, 2 Blaekf. 1.
    4. As Brown did not buy, and Miles did not bid, there was no valid sale; a sheriff’s sale being within the statute of frauds. Jackson v. Catlin, 2 Johns. R. 248; 8 lb. 520; 4 Com. Dig. 234; 3 Blaekf. 483; 2 Caines, sec. 61.
    5. Enloe bid off the property when sold on Monday. The sheriff tendered him no deed; until then he could not declare the bid forfeited. Tate v. Greenlee, 4 Dev. R. 149.
    
      Sheppard, for appellee.
    The sale by the sheriff was properly advertised, and in all respects regular.
    The act of 1838 provided, that the sheriff of Holmes shall have until the middle of each term of the circuit court, to make a return of all executions returnable to the court, and shall have power to sell any property under execution on each and every day during the same space of timé. H. & H. 656, sec. 87.
    The act of 1840, which is relied on by the plaintiff in error, by an express proviso, does not apply to sales made in term time. Laws of 1840, p. 232.
   Mr. Justice Ti-iacheR

delivered the opinion of tile court.

The object of this bill in the vice-chancery court at Carrollton, is to set aside a sheriff’s sale, and vacate his deed to certain lands

It is charged, that the sheriff of Holmes county sold the lands by virtue of an execution, during the term time of the circuit court of that county, but after having postponed the sale from day to day. It is also insisted that Miles, the purchaser, was apprized of this circumstance, having been a bidder at one of the postponed sales.

Thg sheriff of Holmes county has, by law, until the middle of each term of the circuit court, to sell any property under execution, but he is not authorized to continue sales from day to day during that time. H. & H. 656, sec. 87; Acts, 1840, ch. 139, sec. 1.

The record shows the facts of the case to be as above stated, and they constitute, in our estimation, the sale illegal, and Miles chargeable with notice of the irregularity of the sheriff in executing the process of execution. He, therefore, cannot be protected in his title. The case falls within the exception made in The President, &c. of Natchez v. Minor, 10 S. & M. 246.

And the complainant charges also, that he tendered to the defendants the amount of purchase money paid by them for the lands, and at the hearing in this court adhered to his willingness to do this equity. We therefore adjudge the decree of the vice-chancellor to be reversed, and a decree entered in this court, setting aside the sheriff’s sale, and vacating his deed upon complainant paying to the defendants the amount of money paid by them in consequence of the purchase, with the interest accrued thereon, and legitimate charges.

Mr. Chief Justice Shakkey, not having heard the argument, gave no opinion.  