
    *John M. Harrison, et al., v. George Maxwell.
    Where a sheriff’s deed recited that a fi-fa., under -which the land was sold, had issued from a particular, when, in fact, it has issued from another; this misre-cital will not he fatal, as a ground of nonsuit, 
    
    
      In a sheriff’s deed, a recital of the authority under which he has sold is not indispensably necessary.
    A bare recital in a deed is not a substantial and efficient part of it.
    A vested remainder in fee of land may be levied on and sold during the continuance of a life estate, and while the tenant for life is in possession.
    This was an action of trespass to try titles to land, tried before Mr. Justice Johnson-, at Abbeville, Spring Term, 1820.
    The land in dispute had been sold by the sheriff of Abbeville district, on a writ offt. fa., founded on a judgment obtained in the Court of Common Pleas for Laurens district, at the suit of M’Dowell against the present defendant, and was purchased by M’Dowell, from whom the plaintiffs derive their title. The deed from the sheriff to M’Dowell, recited, that the -writ of fi-fa- had issued from the Court of Common Pleas for Abbeville district, but it appeared that no such execution had issued from that Court, and that there was no judgment entered upon in that Court between the parties.
    The defendant’s counsel objected to the admissibilty of the judgment and execution from Laurens district, on the ground that it was not the same recited in the sheriff’s deed. But this objection was overruled.
    The defendant then proved a title in John Maxwell, his father, who had died some time before, who, by his last will and testament, gave the lands to his widow during life or widowhood, and after her death or marriage, to the defendant in fee; and further proved, that at the time of the sale by the sheriff, the widow was alive, unmarried, and in possession, and insisted that the estate which he had in the land at the time, was not such an interest as was the legitimate subject of a levy and sale, under a writ oifi.fa.
    
    *The presiding judge being of opinion it was, so directed the jury, r*g^o and they found a verdict for the plaintiffs. L
    The defendant moved for a nonsuit, on the ground that the misrecital in the sheriff’s deed, as to the place where the judgment was obtained, was fatal, and the Court below ought to have granted a nonsuit.
    And for a new trial, on the ground of misdirection in the judge, in charging the jury that the defendant’s interest in the land at the time, was the subject of levy and sale.
    
      
      
         John Holloway v. Richard Birtwhistle.
      Tried before Mr. Justioe Non, at Edgefield, Spring Term, 1820.
      This was an action of trespass to try titles to a tract of land, which the plaintiff claimed under a deed from the sheriff of Edgefield district, to John S. Glascock, made in pursuance, of a, writ of ft. fa• against Wm. Shaw, at the suit of the executors of Taylor. In the deed from the sheriff to Glascock, the Ji. fa. was recited as issuing from 'the Court of Common Pleas for Abbeville district. But the judgment and execution produced in evidence were of Edgefield district, and there was no proof before the Court that there was no such judgment as recited in the deed in Abbeville, and the deed set out other boundaries of the land than those mentioned in the levy endorsed on the ft. fa., but, so far as the boundaries were mentioned in the levy, they corresponded with the deed.
      An objection was made, on the part of the defendant, to the admissibility of the record of the judgment and execution in evidence, on two grounds :
      1. Because it was not the same recited in the sheriff’s deed.
      2. Because it did not appear, from the deed, that the land conveyed was the same that had been levied on.
      The Court sustained these objections, and nonsuited the plaintiff. And amotion was made to set aside the nonsuit.
      The opinion of the Court was delivered by
      Johnson, J. This case differs from one of the questions made in the preceding case of Harrison v. Maxwell in this, that there was no proof that the judgment recited in the deed did not exist, and that there was some difference between the boundaries set out in the deed, and that described in the levy endorsed on the execution.
      *If the doctrine attempted to be established in that case be correct, it [-*35^ follows that it is sufficient to show that the sheriff was authorized, and did L sell; and the judgment and execution from Edgefield prove those facts. And it could not therefore be necessary to show a further power derived from an execution from Abbeville. This, therefore, is an answer to the first ground of objection.
      The .variance between the land described in the levy, and that described in the deed, was, I think, a question for the jury. Both describe it as lying near Cambridge, and so far as it is described in the levy, it corresponds with the deed, although it is true the deed does give other boundaries than those mentioned in the levy. Whether a particular tract of land, or any other article described in writing, is the same which we know or see, must always be determined from evidence aliunde. It is impossible, from the nature of things, to point it out with ' certainty, unless it is present, but it .may sometimes be so described as to render it probable. If it is, that is sufficient; if it is not, parol proof is admissible. On this principle, lands represented in the grant as lying in one place, have been permitted to be located in another.
      The motion, I think, therefore, ought to be granted.
      Colcock, Richardson and Huger, JJ., concurred.
      
        Brooks, for the motion. Stark, contra,
    
   The opinion of the Court was delivered by

Johnson, J.

So far as I am informed, it has been the invariable usage to incorporate in the sheriff’s deed a recital of the authority under which he sold, and I am satisfied that a strict adherence to that usage, would be productive of no mischief, but on the contrary, of great convenience, as well to the sheriff as to the purchaser. It would point the former to his authority to sell, if he was called on to answer, and would facilitate the latter in deriving his title. But I am persuaded that it was not indispensable. The bare recital in a deed, is not a substantial and efficient part of it, nor is it evidence of the facts recited, except between the immediate parties to it. Philips on Evidence, 356. The only object for which they are introduced, is to furnish a clue by which, at a remote period, those interested may, with facility, ascertain from what sources their title is derived. Preston, in his Treatise on Conveyancing, 177, remarks that the deed or will, from whom the title was derived, ought, in most cases, to be recited, or, at least, there should- be a reference to them, and all such other facts should be disclosed, as would show the right. This, he says, will greatly aid the title at a future period. It will lead to the documents on which the title is grounded; or should they be lost or destroyed, will tend to satisfy future purchasers, that the title is correctly deduced. This, he adds, however, *can be done with prudence in those instances only, in which the title rests on clear grounds, and is not involved in difficulty, for on the one hand, no convey-ancer of integrity will state that as a fact, which does not exist. And on the other, it is his duty to keep his client’s title free from a disclosure, which, at a future period, might involve the title in increased difficulty, or raise a suspicion of its validity. The same doctrine will also be found in Hobart, 160. Vide 4 Cruise Dig. 257.

It would appear from these authorities, that a recital in a deed might or might not be made at discretion, and consequently a misrecital of that which is legally immaterial, is unimportant. It is not the recital ofa power or authority to sell and convey, which gives the right, nor is it evidence of the right; it is sufficient that the right did exist, and that the seller acted upon it. As a general rule, therefore, it is not necessary, and I am unable to see any distinction as applicable to sheriff’s deeds, although I readily admit its usefulness.' The levy and sale invests him with the title, so far as to enable him to convey, and he does convey ; and it is incumbent on the party claiming under him to show these powers ; the recital will not do it. An argument, ab inconvenienti, opposed to this position, is drawn from the difficulty that would arise in tracing a title without this recital at a distant period. But that sufficiently also exists in every conveyance which does not recite the whole chain of title, and the purchaser may avoid it by memoranda of his own, which will answer all the purposes of a recital in the deed.

On the other question in this ease, I think there is no difficulty. The Act of the Legislature of 1759, P. L. 250, 2 Brev. Dig. 1, subjects lands and other hereditaments and real estates, to be taken in execution, in -payment of debts. These terms cover, I believe, every vested interest that a man can have in lands, and that they do the fee, will not be disputed. The fee simple of the lands in dispute, vested in the defendant, *3501 un(^er Revise, on the death of the testator,* notwithstanding J the life or other estate carved out for the widow, and was therefore the legitimate subject of levy and sale. See 2 Bac. 699, tit. Execution, b. 2. Roll. Abr. 473. 2 Dali. 233. It is argued, however, that an entry by the sheriff, for the purpose of levying during the existence of the life estate, would be a trespass on the rights of the tenant for life. This difficulty may, I think, be obviated, even if an entry be necessary, which I am disposed to question. If the law authorizes an entry, it must, of necessity, afford a protection for that purpose, so far as is necessary.

M'Duffie, for the motion. Noble, contra.

On both the grounds, therefore, I am of opinion the motion ought to be dismissed.

Colcock, Richardson and HugeR, JJ., concurred, 
      
       See Horry v. Frost, 10 Rich. Eq. ; 2 Sp. 468.
     
      
       2 Bail. 361.
     
      
       Stat. 90, adopting Stat. 5 Geo. 2, ch. 7; 2 Stat. 570.
     
      
       Post. 392; Wend. 65.
     
      
       1 McC. 258.
     