
    Drake et al. Appellants, v. Collins.
    Where there is a mortgage lien on slaves, and also a judgment lien, older in point of time than the mortgage, a court of chancery will not annul a sale of the property embraced in the mortgage, regularly made under an execution of such older judgment, on the ground that there was property of the mortgagor sufficient to satisfy the judgment without resorting to the mortgaged property. The application is too late after the lien has been consummated by sale.
    A sale under an execution, issued against an Administrator without revival of judgment, is not absolutely void, but only voidable.
    Where the sheriff returns upon the execution, that he advertised the sale according to law, it will be presumed that the requisites of the law were complied with.
    It seems that it is no ground for vacating a sale, that the property sold low, under a mistaken belief that it was bound by a prior mortgage lien, and that the true condition of the title was known to the purchaser, where a reasonable enquiry would correct the mistake in relation to the incumbrance.
    APPEAL from Chancery.
    This case was on an appeal, prosecuted by the representatives of Eugene Magee, to reverse a decree rendered against them in the court below, on the following state of facts: John Collins filed his hill alledging, that he bound himself as surety in a note, for Richard H. Spears, for three thousand eight hundred and seventy-five dollars and ninety-six cents. That to secure and indemnify him against loss, said Richard H. Spears executed to him a mortgage of certain slaves, which mortgage was dated January 39, 1837, and was duly proved and registered.
    That a judgment had been obtained against R. H. Spears, Eugene Magee, and L. B. Marsh in 1825-6. That said Spears afterwards died; and after his death, to wit: in 1831, execution issued on the judgment and was levied on three of the slaves contained in the mortgage. That Magee, who was only surety for Spears in the judgment, with a view to defraud said Collins, had said slaves levied on, and they were sold without advertising, &c. as required by law, and that said Magee at said sale purchased said slaves.-
    
      That said execution, had previously been levied on property, not embraced in the mortgage, which levy was released for the purpose of levying on the slaves embraced in the mortgage.
    That the execution was tested after R. H. Spears’ death, and the judgment was not revived against his personal representatives, and that it is therefore void.
    That said Magee had full notice of the mortgage at the time of the sale, &c., and that there was other property of R. H. Spears, not embraced in the mortgage which could have been levied on to satisfy the judgment, and that Magee agreed to have the property levied on in the first instance.
    The bill prayed that these negroes may be subjected to the mortgage, &c.
    The answer of Magee denied all fraud; admitted he knew of the mortgage, but that the judgment was older, and was a lien on the slaves; admitted that at the time the execution issued and was levied, and at the time of the sale, that R. H. Spears was dead; but whether it was revived or not did not know; denied that no notice or advertisement of the sale was made by the sheriff, and stated that it was, as proved by the record, exhibited with the bill; stated that he was informed that there were two small ne-groes not embraced in the mortgage, and that he promised to endeavor to have the execution satisfied out of them; that, he directed the sheriff to do so ; that he did all that was possible to be done to find them out and to get other property than that contained in tho mortgage to satisfy the execution, but none could be gotten, and that the slaves mentioned in the mortgage were then levied on, and sold by the sheriff, and that he became the purchaser of three of them; that the judgment under which they were sold, was against said R. H. Spears, and said Magee and Marsh, as sureties for said Spears.
    The answer of the administrator, who married the widow of Spears, denied that there had been any previous levy and discharge thereof.
    The only evidence in the cause, was one deposition which proved the validity of the mortgage, &c. The return of the sheriff on the execution stated that legal notice of the sale was given.
    
      The record of tile judgment, filed with the bill, showed that the judgment was obtained in 1825, and was affirmed in the supreme court m 1826.
    There was no evidence showing any previous levy of the execution on other property, than that embraced in the mortgage. The judgment, by supersedeas, injunction, &c. was prevented from being carried into effect until 1831, when the execution issued.
    G. S. Yerger, for appellants.
    1. The only question in the cause is, supposing that R. H. Spears was dead at the time the execution issued, and the execution not revived against his personal representatives, the sale is void, or only voidable. If the latter, then Magee clearly has the title in the negroes, and the bill as to him must be dismissed. This point has been settled by this court. 2How. Rep. 1.
    There was no necessity to revive against the administrators, they had no interest, for the slaves sold were conveyed to Collins; they could not claim them as assets; at all events, an execution and sale on a judgment, without revival, is good, until regularly set aside, and passes the title. 16 John Rep. 572, 575. 2 Binney, 40.
    And where a sale is made, although the execution may be set aside, yet the sale is valid. 16 John Rep. 737; and other authorities cited.
    2. If it is necessary to prove notice of the sale, the recital by the sheriff is prima facie evidence of that fact. 5 Yerger’,s Rep. 215. In fact, the sheriff is presumed to do his duty, and it must be shown by proof, that he did not give the notice, &c. Rogers v. Jennings’ Lessee, 3 Yerger’s Reports, 308.
   Opinion of the court by

Mr. Chief Justice Shahkey:

The case has not been argued for the complainant either at bar or by briefs; we can only therefore take such a view of it as the prominent features may seem to us to suggest. The object sought to be attained, is the protection of the mortgage lien on particular negroes, against the general lien of the execution, on the ground that there was property enough to satisfy the execution, without encroaching on the mortgage property. As a general rale it is undoubtedly true that where there is a lien on a particular fund, and an older lien on the general fund of which the particular fund is a part, equity on the plainest principles of justice will compel the holder of the older lien to resort to the fund which is not covered by the younger, if it can be done without prejudice to his rights. Thus both are protected. But I apprehend no case can be found in which this has been done, after a sale under the older lien. There the rights of third persons are to be looked to and protected. The lien having been consummated, is no longer subject to the control of the court. The sale, unless it can be set aside for some intrinsic defect, concludes the rights of all parties.

Several specific allegations are made, as the foundation of the prayer to rescind the sale:

First. That it was procured by fraud committed by Magee and Drake. This is denied by the answers, and there is no proof whatever which tends in the slightest degree to prove it.

Second. That the judgment against Spears had not been revived by scire facias. A sale made under an execution which issued without a revival of the judgment, is not absolutely void, but voidable only; and it cannot be avoided collaterally. It must stand until it is regularly set aside. Tho parties to'the judgment do not here complain of it. See 1 Howard, 1; and other authorities there cited.

Third. That the sale was void because the sheriff did not advertise the property according to law. There is no other proof on this subject than the return itself. In. that the sheriff recites that he had advertised according to law. The sheriff being a sworn officer, it is to be presumed that he acted correctly. The return is at least prima facie evidence that he did advertise. I Yerger, 308.

Fourth. That a levy was made on other property, which the sheriff was induced to withdraw on the day of sale. On this subject there is no proof. It seems indeed to be doubtful whether there was at that time other property sufficient to satisfy the execution.

In regard to the knowledge of the purchasers and others that the negroes were subject to the mortgage, and that they thereby sold for less than their value, even supposing this charge to be all true, it amounts to nothing. It was a mistaken notion that the mortgage was a prior lien, which might have been corrected by the proper inquiry; but it is altogether improbable that any such impression could have existed.

The decree of the chancellor must be reversed, and a decree for the appellants.

Judge TURNER gave no opinion.  