
    
      J. E. Ingram v. J. W. & R. Belk.
    
    A levy is not excessive, the sale of -which is insufficient to satisfy the execution.
    If no fraud or unfair practice be used by the plaintiff, his purchase under his own execution will be as much protected as that of a stranger, although the sale be made at a great depreciation.
    The validity of the title of a purchaser at a Sheriff’s sale, does not depend on the Sheriff’s return of the sale; and the omission to endorse it on the execution is a mere irregularity, which may be supplied at any time. — Vide WiMimson r. Farrow, 1 Bail. 611.
    
      The writ of sd. fa. is a mere continuation of the original proceeding; and the authority to issue an execution on a judgment in sd. fa. is derived from the original judgment.
    The return of one nihil to a writ of sd. fa. sued out in 1805, to revive a judgment against the defendant himself, was regular and sufficient, according to the practice of the Common Pleas in this State, at that time. — Vide Gñmke v. Mmj-rcmt, 2 Brev. 202, for the new-practice.
    An execution issued more than a year and a day after the judgment has been rendered, is not void, but voidable only.
    A purchaser, under an execution not void, but voidable only, will be protected in his title; and the objection cannot be made by third persons.
    After the lapse of forty years, a motion to set aside a judicial proceeding, for irregularity, will not be entertained by the Court.
    
      Before Mr. Justice Fkost, at Lancaster, Spring Term, 1846.
    Action of trespass to try title. The plaintiff claimed under a grant to Joseph Singleton, for 2000 acres, dated in March, 1793. It was proved that Singleton married a widow Armstrong, and they left surviving them a daughter, Mary, who married William Ingram. The plaintiff was the only issue of this marriage. William and Mary Ingram died about 20 years ago, within a short period of each other, and when the plaintiff was three or four years of age. It was also proved that Singleton, in 1795, left the State, and had not been heard from by the witnesses, nor by his family, since that time.
    The defendants claimed under the conveyance of Thomas Lee, Sheriff of Lancaster District, to Robert Barclay, Zachariah Canty, and Duncan McCrae, of the land in dispute, dated 13th November, 1806. A judgment was proved in the County Court for Kershaw District, by confession, from Singleton to McCrae and Canty, entered 10th July, 1794, for £15 2s. The first fi. fa. entered November, 1794, was returned, “not executed.” The second, entered 1st June, 1795, had endorsed, “levied on an ear of corn, 18th June, 1795.” On this judgment a sci. fa. was sued out 14th October, 1805, judgment signed 11th January, 1806, and fi. fa. entered the same day, for $73 65, debt, and $9 35 costs. The execution was entered in the office of the Sheriff of Lancaster District, June 2, 1806. On this were the following endorsements: “sold Robert Barclay, for $42, 1000 acres of land, 13th July, 1806; costs of sale, $4 76;” “4000 acres of land, sold 1st September, 1806, to Robert Barclay, for $35“ also 2600 acres, in three tracts at $35,” “titles to be made at Court.” The land in dispute was part of the 4000 acres, which consisted of two tracts of 2000 acres each. The return of the Sheriff to the writ of sci. fa. was, that the defendant could not be found in bis District, nor any property by which he might be attached. It was proved that Barclay was the agent of McCrae and Canty, and that they were engaged in buying lands. A conveyance of the interest ¡of McCrae and ■Canty to Robert Barclay, was proved; that Barclay was dead, leaving several children, and among them Mrs. Beard. The record of a decree in Chancery was produced, on a bill filed by Mrs. Beard against the defendants for partition of the land in dispute, by which an interest of 4-27ths was decreed to the complainant, and the land ordered to be .sold for partition, at which sale the defendants purchased for $>4,600. On the tract a gold mine had been discovered and opened about seven or eight years before the action was commenced. This constitutes the principal value of the .tract. The evidence was various respecting its value forty years ago. One witness said, at that time it was not worth the taxes; that land in that neighborhood was only valuable for a settlement, and a tract with a settlement might be bought for a horse. Another said, lands there were worth 75 cents per acre. He referred to the consideration expressed in a deed, conveying 197 acres for $>160, which he had seen. The plaintiff’s surveyor said they were now worth from 25 to 50 cents. No settlement had been made on the land until the defendants took possession, seven or eight years before the action, who had cleared two parcels, each of about ten acres. Ten or twelve years ago, the son of Robert Barclay had had the land surveyed. The plaintiff was suing for the benefit of himself and several others associated with him for the recovery of the land.
    The jury were instructed by the Circuit Judge that the plaintiff had proved a good title, unless it were evicted by the Sheriff’s sale, under the judgments of McCrae and Canty against Singleton. In support of this judgment, they were instructed that the law presumed every thing to have been done, in due form, which was necessary to the rendition of the judgment, and that this presumption, fortified by the lapse of forty years, protected the judgment from reversal now, on account of the alleged irregularities.' That it was not the duty of the Sheriff to post the copy sci. fa. under the Act of 1792, and the absence of a return by him to that effect, raised no presumption against the fact that it was done; that the levy endorsed on the execution was sufficient, and if not, a levy would be presumed, from the lapse of time. ■ Adverting to the argument that the judgment was void for want of jurisdiction, from the evidence that Singleton had left the State in 1795, and had not been heard from, and the consequent presumption of his death, it was suggested that notwithstanding such proof at this time, it might well be that Singleton Nad been heard from within three years after he had gone, which would have negatived the presumption of his death at the time the sci. fa. was issued. The case was submitted to the jury under the instruction that after the lapse of forty years the judgment could not be impeached for any of the alleged irregularities, so as to defeat the Sheriff’s sale and conveyance, which was valid unless avoided for fraud.
    The jury were further instructed that a Sheriff’s conveyance could not be defeated by proof that the levy and sale were excessive, not even against the plaintiff in the action, who might be the purchaser, without proof of fraud or collusion on his part. In summing up the evidence of the value of the land and the price which might be expected at a Sheriff’s sale in 1806, the fact that Singleton had abandoned it when he left the State, and no claim or settlement made until the defendants entered, was mentioned, with other facts affecting the question of excessive levy.
    On the subject of the plaintiff’s minority, the jury were told that it was not material to his claim, since by it a right might be protected, but not vested; and that the only question was, whether the plaintiff had any right, and not whether it was barred by the lapse of time.
    The question of fraud by the plaintiffs, McCrae and Canty, whether in the original judgment or the revivor of it, or in the levy and sale of Singleton’s land, was submitted, on the proof, to the jury, as a fact for them to determine, according to the decision of which the verdict should be for the plaintiff or for the defendant.
    A verdict was found for the defendant.
    The plaintiff appealed, and moved the Court of Appeals for a new trial, on the following grounds, viz:
    1. Because the judgment on the scire facias, in the case of McCrae and Canty v. Joseph Singleton, said to have been revived in January, 1806, was irregular, null and void, as the said Joseph Singleton had left this State in 1795, and has not been heard of since that time, and was therefore, for all legal purposes, if not in fact, dead before the year 1806, therefore no judgment could then have been revived by the most regular proceedings against him.
    2. Because the proceedings on the scire facias were irregular, null and void, as was apparent on the face of the proceedings themselves, as a copy of the sci. fa. had not been posted on the Court House door, this appearing from the Sheriff’s return on the sci. fa. showing the manner in which he had served the same, which was,—
    “The within named Joseph Singleton is not found, nor hath he any thing in my District whereby I can make known to him to be and appear as within I-am commanded.
    REUBEN ARTHUR,
    
      Sheriff of Kershaw District.”
    3. Because his Honor ruled, in charge to the jury, that the Sheriff had nothing to do with serving the sci. fa. referred to in the above grounds, but that it was the duty of the Clerk to post the notice on the Court House door. The plaintiff maintains it was, under the Act of 1792, the exclusive duty of the Sheriff to serve such process, and that his return thereto becomes a part of the record, and is not to be contradicted by vague presumption or even by parol testimony.
    4. Because his Honor instructed the jury that if there were never so excessive a levy in this case, it could not affect the right of the defendants, but that the plaintiff must look to the Sheriff — in which the plaintiff submits there was error, as the defendants claim under McCrae and Canty, who purchased the land in dispute under their own execution, and therefore every irregularity in the proceedings, and an excessive levy, would affect their purchase; and that a levy, if one in fact had been made, on six thousand six hundred acres of land, to pay a small balance of about $50 91, was excessive, and in this case would affect the purchasers, and so the jury should have been instructed.
    5. Because 7600 acres of land was sold to pay a small debt of $73 85, without any levy being entered on the fi. fa. by the Sheriff — his Honor ruled that the law did not require the Sheriff to enter or return his levies until after the Act of ’39.
    6. Because his Honor instructed the jury that all the proceedings under the sd. fa. were regular, and said to them, “you are to take this as the law from the Court, and if there be any error, the plaintiff has his redress by way of appeal to a higher Court.”
    7. Because his Honor instructed the jury, broadly and un-qualifiedly, that the presumption of law was, that every thing that was necessary to have been done and proved, had been done and proved in due and Jlegal form, or the Court would not have rendered the judgment — whereas, they should have been told that this was but a mere presumption, and only stood until the contrary was made to appear.
    8. Because his Honor charged the jury that as Joseph Singleton went away and left the land, this was evidence tha? the same was of no vaiue.
    9. Because, the defendants, and those under whom they claim, did not take possession of the land in dispute, nor even attempt to exercise any right thereto, until about seven or eight years before this suit was brought in 1842.
    10. Because there were continuous disabilities, consisting of infancy and coverture, from the death of Joseph Singleton, the ancestor, in 1802, down to August, 1839, from which the plaintiff was allowed no benefit under the charge of his Honor, as all he said on that point was, “ there had been something said about minorities.”
    11. Because his Honor should have submitted the question to the jury whether, from the evidence before them, they did' not believe Joseph Singleton was dead before 1806, if it were not to be taken as conclusive evidence that he was dead until the contrary were made to appear.
    12. Because his Honor said, in his charge to the jury, “ it may be that Joseph Singleton was heard of within the next three years after he went away in 1795,” when there was not one particle of testimony on which to found such vague presumption, and if there had been, still this could not avail the defendant.
    13. Because the Court rejected evidence offered of rule and return thereto, made heretofore at the instance of John E. Ingram v. John W. Belle and Robert Belle, the defendants.
    14. Because the proceedings under the scire facias, and subsequent thereto, were null, fraudulent and void, and conveyed no rights to the defendants.
    15. Because the verdict is contrary to law and evidence.
    Guegg, for the motion.
    Singleton never had notice, actual or constructive, of the sci. fa. and proceedings thereon. No defence was made. If living, Singleton resided beyond the State. He was not, therefore, a party to the proceeding. As to his heirs, &c. the judgment was a nullity. He knew nothing of the sale. No one had ever administered on his estate. The plaintiff purchased the land. For many years Singleton’s only heir was a minor. The Sheriff never served the sci. fa. He was the proper officer to do it.— Vide 3 Stat, 118, sec. 1; 2 Stat. 190; 7 Stat. 201, secs. 6 and 7; 7 Stat. 224, sec. 31; 2 Stat. 254, sec. 4; Grimke v. Mayrant, 2. Brev. 202 and 8; 1 Lord. Ray. Rep. 522; King v. Wolf 2 Barn, and Aid. 610; 2 Durn. and Bast, 10; 4 Durn. and East, 648.-Writs and records are the law of the land. From 1758 to this time writs have been directed to the Sheriff, and it is his duty to serve them.— Vide 4 Comyn’s Digest, 245 — title, Execution, letter J. 4, and Appendix to Grimke, 3, for the statute of Edward I. directing that the Sheriff should serve the sci. fa. Singleton was no party to the proceedings. The mere posting of a notice that a sci. fa. has been issued cannot make the defendant a party.— Treasurers v. Tanant, 1 Hill, 7. It is not a compliance with the Act. Nor is the return of nihil by the Sheriff constructive notice. It is not in accordance with the Act of 1792, which requires the posting of a rule on the Court House door when the defendant is beyond the State. As to one nihil being enough in the Common Pleas, but two essential in the King’s Bench: the practice of the English Courts of Common Pleas cannot govern what has been the settled practice of this Court for forty years. Where the judgment has been of ten years’ standing, there must be two nihüs.- — Bagnall v. Grey, 2 Sir Wm. Blk. 1140. There must be two nihils or a scire facias, and personal notice.— Ydrleer v. Reynoldson, 2 Sir Wm. Blk. 995. The very return precludes the idea that the Sheriff posted a rule on the Court House door. A jury cannot be directed to presume .against the fact before them. This is not an irre-buttable presumption. The rule which presumes that all necessary to the rendition of the judgment has been done, is not applicable here. Best on Presumptions of Law, 74, 75 and 78, and Mathews on Presumptive Evidence, 274, will show how far this rule should- be properly applied. If the writ had been lost, the Sheriff may be presumed, to have done his duty. 3 Barn, and Aid. 152; Best on Presumptive Ev. 81. The maxim omnia presumunter, &c. will not apply to give jurisdiction to an inferior tribunal. — 4 Phil. Ev. 1015, notes; King v. Allsaints, 1 Man. and Ry. 668; 4 Phil. Ev. 1021; Hates v. Lausyug, 9 Johns. Rep. 437; 4 Phil. Ev. 801, note 551; Mills v. Martin, 19 Johns. Rep. 33; Barns v. Branch, 3 McC. 19. In Miller v. Miller, 1 Bail. 242, the judgment was a nullity, for want of notice. The jury should have been allowed to examine into the fact of "the posting of the sci. fa. and not governed by legal presumptions. — Best on Presumptive Ev. 21, sec. 18. No lapse of time will authorize the presumption that a defendant has had notice, when the fact appears otherwise on the face of the proceedings. Thirty years will not do it. — Hathaway v. Clark, 5 Picker. 490. As.to Singleton’s heirs, the judgment is a mere nullity, and they may set it aside collaterally. This is no mere irregularity, which can be taken advantage of only by the party concerned. A judgment obtained without notice is void. — Bu-channan v. Rucker, 9 East, 192; 2 E. C. L. Rep. 496; Kilburn 
      
      v. Woodworth, 5 Johns. Rep. 37; Borden v. Fitch, 15 Johns. Rep. 121; Hinton v. Towns, 1 Hill. 439; 4 Phil. Ev. 903, note 637. The rule applies not only to foreign, but domestic judgments. — Elliott v. Peirsol, 328. They may be questioned collaterally. They are null, if the Court had not jurisdiction. If null, it is trespass to enforce them. — Hollings-worth v. Barbour, 4 Peters, 466; Fisher v. Harden, 1 Paine, 55; Hickey v. Stewart, 3 Howard, 750. The judgment in this case is not even evidence.
    Clinton, contra.
    
    The question of Singleton’s being dead or alive was one for the jury, and is settled by their verdict. There was no proof that he was without the State when the sci. fa. was issued. Was it not competent for Canty and McCrae to revive their judgment in accordance with the practice previous to 1792 ? The Act of 1792 does not prohibit the old mode of reviving judgments. The Act of 1746, Pub. Laws, 212, does not apply to this case; nor does the Act of 1784. One nihil was sufficient to revive a judgment between the same parties, until the Act of 1792.— Vide 3 Law Lib. 53, title, Sci. Fa.; 2 Gre. 168; 2 Saund. 73; 2 Salk. 599; Jac. Law Die. title, Sci. Fa.; 1 Blk. Com. 89, and 3 do. 429. Both Acts, one not having repealed the other, shall have concurrent effect. There is nothing in this sci. fa. showing that it was under the form of the Act of 1792: it yvas under the old form anterior to the passage of that Act. If under the Act of 1792, it should have appeared on the face of the process. Did Singleton have constructive notice 1 A rule can only be obtained from the Court where a judgment is to be revived against one without the State, under the Act of 1792: The Act is silent as to the whole manner of obtaining and posting this rule, &c.; hence the option allowed to revive under the old form, by one nihil. The Attachment Act directs very dissimilar proceedings from this. — 1 Brev. Dig. 33. There is nothing in the writ under the Act showing that it must be served differently from the old way. At this late day, the Court should presume that all things necessary to the rendition of the judgment were done — constructive notice given, &c. It cannot be proved, because there was no mode prescribed by the Act. by which the rule became a part of the record, and evidence in itself. In Porter v. Brisbane, 2 Brev. 496, the Court presumed a ca. sa. and return of non est in-ventus by the Sheriff, the ca. sa. not being produced. Singleton was in the Court by the original writ when the sci. fa. issued, and could not be dismissed until the judgment was satisfied. The sci. fa. is only a continuation of the suit— therefore one nihil is sufficient. This is very different from the proceeding against Bail, who has ne ver been a party in Court. One who withdraws himself voluntarily from the jurisdiction of the Court, should not be indulged by the law. Pie has no right to complain of the want of notice, and one nihil is sufficient. The law does not contemplate that, by posting, the defendant will have actual notice; it is a form to be observed by the plaintiff. According to the old practice in England, the sci. fa. was only lodged in the Sheriff’s office. — 4 Term Rep. 553; 2 Tidd, 1095; 6 Jac. Law Die. title, sci. fa. Suppose there had never been an attempt to revive this judgment by sci. fa. would the fi. fa. have been void, or voidable only? Irregularity would only make it voidable, .(Reynolds v. Corp, 3 Caine’s Rep. 270 and 71; Fleming v. Gilbert, 3 Johns. Rep. 523; 45 E. C. L. Rep. 707,) and only a party to the proceedings can take advantage of it, (Henry v. Ferguson, 1 Bail. 512; 3 McC. 142; 2 Rice’s Dig. 48,) and then not after great lapse of time. — 3 Phil. Ev. 1311, note 903; Surtell ads. Brailsford, 2 Bay, 333; Mooney v. Welsh, 1 Mill’s Con. Rep. 133; 3 McC. 20; Jackson v. Bob-ins, 13 Johns. Rep. 571; Underhill v. Devereux, 2 Saund. 72; 2 Strange 198 and 1075; 7 Johns. Rep. 556. The original judgment was never satisfied by Singleton, and these lands were sold by his creditors for a just debt. The mother of the plaintiff and the widow of Singleton acquiesced in all these proceedings for a long time. This judgment cannot be thus collaterally set aside. — Heister v. Fortner, 2 Bin. 40; Jackson v. Delancey, 13 Johns. Rep. 550; Griffin v. Ward-law, Harper, 481; Jackson v. Robins, 16 Johns. Rep. 573; 3 Wend. 27; Jackson v. Bartlet, 8 Johns. Rep. 365; Croke Eli. 188; 1 Salk. 273; Pub. Laws, 38.
    A purchaser is not bound to look into the regularity of the Sheriff’s sale. — Giles v. Pratt, 1 Hill, 240; Turner v. Mc-Crea, 1 N. and McC. 12; Barkley v. Screven, 1 N. and McC. 408; Allan on Sheriffs, 185. The original judgment binds the land. — N. Y. Dig., title, Execution, sec. 209. In Hopkins v. Degraffienreid, 2 Bay, 441, the recital in a Sheriff’s deed was regarded as his official return.
    HanNA, same side.
    The objections are of two classes: those which affect the validity of the judgment and execution, and those which affect the levy and sale of the land. Stat. 13th, Ed. 1st, (ch. 55,) was the statute which gave the revivor of judgments by scire facias. — Sellon’s Practice, 89; 2 Tidd’s Prac. 1125; Rich. Prac. 221; 2 Salk. 599. There was no real difference between the practice in the King’s Bench and the Common Pleas in reviving judgments by sci. fa. — Miller v. Yerr away, 3 Burrow’s Rep. 1723; Gross v. 
      
      Nash, 4 Burrow’s Rep. 2439; 19 Viner’s Abridg. 288, title, Sci. Fa. Sellon says, in general no notice is given in scire facias. — Bdgnall v. Gray, 2 Sir Wm. Blk. 1140. The Court may act for itself in requiring what terms it pleases in the revivor of the judgment. — Pub. Laws, 212; Pub. Laws' 369 and 38. The judgment was good as long as it stood, and third persons cannot take advantage of or question irregularities. — Henry v. Ferguson, 1 Bail. 512. The Act of 1792, 7 Stat. 280, is said to make a difference in our practice, but it does not require, but says it is sufficient, to post a rule, <fcc.; and it may be questioned whether this Act refers to the revival of final judgments between the original parties. If it does, it does not take away the old practice. Grimfce v. Mayrant is relied on by the opposite side, but the question in that case was, whether the judgment could be revived by one sci. fa. and two nihils. It was also a proceeding by executors. (In such case, we admit the practice to be different from that now contended for.) In that case the party could have been actually served, and the plaintiff knew it. The case of the Treasurers v. Tanant, 1 Hill, 7, is not a parallel case to this. The return of nihil in this case, is no presumption against the posting of the rule. A sci. fa. is not necessary to revive a judgment after a fi. fa. has been once issued, even if a year and a day have elapsed. — Tidd’s Prac. 1004; 2 Coke on Lyt. 290, B.; Ayers v. Hardress, 1 Strange, 100; 2 Wilson’s Rep. 82; Gonnigal v. Smith, 6 Johns. Rep. 106; Jackson v. Stiles, 9 Johns. Rep. 391. When irregular, the revival is not void, but voidable only, {Patrick v. Johnson, 3 Lev. 404,) and it is voidable only by an original party; {Jackson v. Bartlet, 8 Johns. Rep. 361,) and it cannot be avoided in a collateral issue, nor in a direct one after the lapse of twenty years. — Jackson v. Robins, 16 Johns. Rep. 575 and 576; 2 Binney, 40. Vide 1 Greenleaf Ev. 41, as to the presumption of life; after seven years’ absence, it is destroyed. —10 Pickering,. 517. Conclusive presumptions are in favor of legal proceedings. —1 Greenleaf Ev. sec. 19. After twenty years, it is presumed that all persons had notice of legal proceedings in a Court of jurisdiction. — Brown v. Wood, 17 Mass. Rep. 68. The want of a return does not invalidate a Sheriff’s sale. —Allan on Sheriffs, 83; Graves ads. Belser, 1 N. and McC. 125; Executors of Evans v. Rogers, 2 N. and McC. 563; Turner v. McCrea, 1 N. and McC. 11.
    A. W. Thomson, for the motion.
    In 1806, for all legal purposes, Singleton was dead; and under no form could the judgment be revived against him. The Sheriffs are the proper persons to serve the process. — Act of 1792, 2 Brev. Dig. 170, sec. 22. The posting of the rule should have appeared on the record. — -1 Greenleaf Ev. 22, sec. 19. No case can be produced of the revival of a judgment without two nihils, under the practice anterior to 1792. No man’s property can be taken from him without giving him an opportunity to make a defence. After seven years the presumption of life ceases, without proof to the contrary. — 1 Phil. Ev. 197, and 3 do. 489, note 381; Wood v. Wood, 2 Bay, 476; Burns v. Ford, 1 Bail. 507; Proctor v. McCall, 2 Bail. 298; Cusac v. White, 2 Mill’s Con. Rep. 279.
   Pbost, J.

delivered the opinion of the Court.

Before proceeding to the principal question presented in the case, several detached grounds of appeal will be considered. The fourth ground affirms that the levy was excessive ; and that a purchase by the plaintiff in execution, under an excessive levy, is void. It is assumed that the excess of the levy is to be decided by the quantity of laud sold, and not by the price it brought. A levy is not excessive, the sale of which is insufficient to satisfy the execution. This seems to be admitted as to a stranger, but not as to the plaintiff, who may purchase. A purchase by the plaintiff, in a fail-competition, cannot be vacated, because the sale was made at a great depreciation. If no fraud or unfair practice be used by the plaintiff: his purchase will be as much protected as that of a stranger. It was submitted to the jury to determine if the plaintiff had been guilty of any fraud or unfair practice* in the sale of the land. With the direct evidence respecting its value, the circumstance that Singleton had abandoned the land, and that it had remained unclaimed by any person for more than 30' years, was brought to their notice.

The exception taken in the fifth ground of appeal is not material. The sales were made between the time of the ■lodgment of the execution and its return. The return of the sales implies a levy. But were it otherwise, the validity of the purchaser’s title does not depend on the return. The omission to endorse it on the execution is a mere irregularity, and may be supplied at any time.—Williamson v. Farrow, 1 Bail. 611.

The report shows that the eighth ground of appeal presents a very imperfect statement of what was said, by the Circuit Judge, on the subject of the plaintiff's minority. The defendants did not claim by the statute of limitations, nor rely on any presumption of a grant or release, which might be repelled by the infancy of the plaintiff. Their title to the land depended on the validity of the Sheriff’s conveyance to Barclay, McCrae and Cantey; which could not be affected by the plaintiff’s minority.

The eleventh ground, which excepts to the refusal of the Circuit Judge to submit to the jury the fact of Singleton’s death, furnishes an answer to the exception, taken in the twelfth ground, to his alleged comments to the jury on the evidence of that fact.

The evidence referred to in the thirteenth ground, as hav- . ing been rejected, was a printed brief of the case, between the parties named, in the Court of Appeals.

All the other grounds relate to the validity of the- Sheriff’s deed to Barclay, McCrea and Cantey. If that be valid, the plaintiff is not entitled to recover.

It is contended for the plaintiff, that the execution, under which the land in dispute was sold, is void, because the judgment in sei. fa. on which it was issued is void, having been rendered on the return of one nihil. . Many authorities were adduced to show that a judgment, rendered without the service of process, actual or constructive, on the party to be charged, is void for want of jurisdiction; so that no right or title can be acquired under it — that the objection may be taken collaterally in any action in which a title, derived from such judgment, may be in issue. These positions may be admitted without affecting the decision in this case. In the application of them to the question under consideration, it is assumed, by the counsel for the plaintiff, that the execution, under which the defendant claims, was issued on the judgment in sei. fa. But it is proposed to show that the authority to issue the execution is derived from the original judgment by confession — in rendering which, the.Court had, undeniably, jurisdiction; that the return of one nihil to the writ of sci. fa. at the time the judgment was rendered, was regular and sufficient; and even if it were not, that the execution was, on that account, voidable only, and not void; that purchasers under an execution, voidable for irregularity, are protected in their titles; and that an execution can be set aside for irregularity, only on a direct application of the defendant; and that after a lapse of forty years, such a motion will not be entertained by the Court.

At common law, all process is discontinued after a year and a day; so that if the plaintiff neglected to sue out execution within that time, he was afterwards prevented, and was obliged to bring an action of debt on the judgment. By the statute of Westminster, the writ of sci. fa. was given to have execution of the judgment. This is a mere continuation of the original proceeding. It must be issued from and returned to the Court in which the judgment remains of record. No interest nor damages are recoverable, nor costs, until the statute of 8 and 9 William III. It is called a, “writ of execution,” and the judgment rendered oil its return is, that the plain tiff have execution of the original judgment.

In the Common Pleas, if the sci. fa. be issued on a judgment, against the defendant, and the Sheriif return nihil, and the defendant make default, judgment is rendered against him, without awarding a second sci. fa. — Tidd, 1125. In the King’s Bench, in the like' case, two nihils are requisite; but it was usual to sue out both writs together, making the teste of the second as if the first had actually been returned. Thus for any purpose of actual notice, there was little difference between the practice of the two courts. The return of one nihil to the sci. fa. against Singleton, was pursuant to the practice in the Common Pleas; and it must be assumed .that the proceeding was directed by that practice. The case of Grimke v. Mayrant was decided after the judgment was rendered against Singleton. That case, confessedly, introduced a new practice, more suitable, as it was said, to the organization of our courts, when it required personal service of the writ, if the defendant was known to be in the State. It was not decided what course should be pursued if the defendant was in the State, and the plaintiff did not know where he resided. There is no proof that McCrae and Canty had any information respecting Singleton’s residence. The'record of the judgment in sci. fa. against Singleton is perfectly regular, according to the Common Pleas practice. To adjudge, at this time, that one return of nihil was not sufficient, would be, in effect, to review that judgment; and now, for the first time, declaring that the practice of our Court shall conform to that of the King’s Bench, introduce a rule, and reverse a former judgment for error in not having conformed to it.

But the plaintiff insists that having shown that Singleton was absent from the State when the sci. fa. was issued, and for a period of time which would raise the presumption of his death; that as against a defendant absent from the State, a copy of the writ should have been posted at the Court House door, pursuant to the Act of 1792; or on the presumption of his death, two nihils should have been returned, according to the practice of the Common Pleas in such case. It is unnecessary to decide on the admissibility or effect of such evidence to avoid a judgment, rendered 40 years ago. It may be admitted thát the return of one nihil was insufficient to warrant the judgment on the sci. fa., and that the judgment was irregular and void. Then the case will be, that the ji. fa. was issued eleven years after the return of the first fi. fa., without intermediate returns and continuances. It is well settled law that an execution so issued is voidable only, and not void. In Patrick v. Johnson, 3 Lev. 404, which was trespass for false imprisonment, the defendants justified the arrest and imprisonment of the plaintiff under an execution. The plaintiff replied that more than a year and a day had expired after the judgment was rendered, before the execution was sued out. The plaintiff demurred, and it was resolved, that an execution, issued after a year and a day, is not void, but. voidable only; and that, until it is reversed, it is a good justification. The same point has been affirmed in numerous cases.—Henry v. Ferguson, 1 Bail. 513; Barkley v. Scriven, 1 N. and McC. 408; Jackson v. Bartlet, 8 Johns R. 361; Jackson v. Delaney, 13 Johns. R. 538.

It is equally well settled that the purchaser, under an execution not void, but voidable only, will be protected in his title; and that the objection cannot be made by third persons. In Henry v. Ferguson, which was an action of trespass to try title, the plaintiff claimed under an execution issued on a judgment in sci. fa. It was objected that the sci. fa. was irregular. Col cock, J. said it was unnecessary to consider whether the judgment produced were regular or not, for it has repeatedly been decided that third persons cannot inquire into the matter. It was an authority, as long as it stood unreversed, to issue the execution. Barkley v. Scriven, 1 N. and McC. 408; Jackson v. Delaney, 13 Johns. R. 538; Jackson v. Styles, 9 Johns. R. 391.

After a lapse of 40 years, judicial proceedings cannot be set aside for irregularity. The distinction between judicial proceedings, which are void and voidable only, has been overlooked in the argument for the plaintiff. Authorities' have been cited to prove that a void judgment is a nullity, and that the objection may be taken to defeat any title acquired under it, by any person, and in any action, without limitation of time. It is unnecessary to controvert these cases. The judgment by confession against Singleton, under which the defendant claims, is undeniably valid. The objection to the execution is a mere irregularity in suing out process, and makes it only voidable. It is too late, even on motion, for the defendant in execution to set it aside. In

, 2 Bay, 233; a motion was refused after twelve years. In Jackson v. Robins, 16 Johns. R. 571, Chancellor Kent held twenty-seven years clearly a bar. The case of Thompson v. Skinner, 7 J. R. is almost identical with the present. A motion was made to set aside a judgment, which had been entered 25 years before, on affidavit that the defendant died in vacation and before the teste of the writ; and that his heirs had ever since been under disabilities, as minors or femes covert. The motion was'refused, on the ground that, after 20 years, no judicial proceeding ought to be set aside for irregularity.

This rule is indispensable to the security of judicial sales. A purchaser cannot be required to examine into the record, and, reviewing the judgment and proceedings in the case, be held to buy at the risk of his own vigilance and skill in discovering any irregularity, apparent in the proceedings; and against such as may afterwards be presented by the loss or destruction of any part of the proceedings, and also against such as may be created in the record, apparently regular and complete, by the admission of extrinsic evidence. The rule acquires the force of public necessity, when titles, confirmed by long possession, are assailed. If time is not permitted to supply the evidence it destroys, rights become more insecure in proportion to the period they have been possessed. In this case the defendant is a purchaser for valuable consideration, without even any imputed notice of any fraud or defect in the title acquired under the execution against Singleton, which had descended without claim or dispute to the third generation of the purchaser. If such a title be not protected by law against the objections now made by the heirs of Singleton, judicial sales would suffer a shock which would produce incalculable mischief.

The motion is refused.

O’Neall, J. Evans, J. Wardlaw, J.' and Withers, J, concurred.

Motion refused.  