
    Brace and Wife, &c., vs. Shaw, &c.
    APPEAL PROM KENTON CIRCUIT.
    1. The equity of redemption in lands which may descend to heirs, is liable to sale under execution, upon judgments' against the heirs, for the debts of the ancestor.
    2. It is not necessary, to render the sale of an equity of redemption valid, that the sheriff should specifically set forth in his levy and sale, the amount of the mortgage liens upon the land. .
    3. That an execution omitted to issue for interest, when interest was given, held not a sufficient ground to invalidate á sale made under it, when there was no suggestion that there was any other judgment between the parties.
    4. A sheriff having two executions in behalf of the same plaintiff, and against the same defendant, returns on each execution the sale of the same lands. Held, that whether he in fact made two sales or one only there Was no irregularity of which the defendants in the execution could complain.
    5. The pendency of a suit to foreclose a mortgage upon land presents no obstacle to the sale under execution of the equity of redemption, in behalf of another creditor.
    The facts of the case are stated in the opinion of the Court. Rep.
    
    
      Fox and French, for appellants:
    The first question arising in the caséis whether by any law of Kentucky an equity of redemption which has descended from an ancestor to his children can be levied upon and sold, upon an execution issued on a judgment at law against the heirs?
    It cannot be pretended that an equity of redemption can be sold on execution, by any common law rule or proceeding. (1 Powell on Mortg. 254; 1 Ohio Rep. 314, 318.) If it can be sold at all on execution, a statute of the State must be found authorising the sale on such execution obtained against the heir. In 1 jDana, 24, Cooper vs. Martin, and 1 Dana, 187,- Buck vs. Sanders, it was held the interest of a mortgagee could not be sold on execution.
    The act of 12th February, 1828, relating to executions, it is claimed by defendants in error, authorises the sale in the present instance. This we deny.
    
      The 36th sec. of that act, provides that when real estate is held or covered by mortgage, deed of trust, or other incumbrance, all the right and interest, legal or equitable, which the mortgagor or grantor has in said estate, shall be subject to be levied upon and sold by execution in the same manner as such property might have been sold if no such incumbrance had existed, and the purchaser shall take it subject to such incumbrance, and may pay off and discharge such incumbrance, &e.
    This certainly does not authorize any equity of redemption to be sold, except where the execution is against the mortgagor, for it is to be levied upon the title which the mortgagor has in said estate. It cannot be pretended that after the mortgagor has sold or conveyed bis equity of redemption, the same could be levied upon, on an execution issued against him. {2 Dana, 204; 8 Ik., 198.)
    There is no provision made in this statute for levying upon an equity of redemption, unless it is while the same is in the hands of the grantor or mortgagor; it is only the right which such mortgagor has (that is, at the time the execution is in the sheriff’s possession) which can be levied upon; such we conceive to be the fair construction of the statute.
    We elaim that at the time the execution came into the hands of the sheriff, Abraham P. Howell had no right nor title in the property. Whatever right he had was, by law, on his death vested in his heirs; he was as far from being the owner as though he had sold and conveyed it to others. Again, the execution was not against him, hence it could not be levied upon his equity if he had any.
    The Legislature of Kentucky has- not altered the common law principle, that an equity of redemption cannot be sold on execution except in the single case of a judgment obtained against the mortgagor, and where execution is issued and levied while the mortgagor remains the owner. After the estate becomes vested in others, whether by a sale by the mortgagor, or by the act of law, as by descent, itcannot be levied upon on execution.
    By the statute law of Kentucky, it is declared that when a man dies his whole real estate shall pass to his children; the equity, therefore, was in the heirs.
    It is claimed, however, by the defendants in error, that because the estate descended to these children, it was subject to be sold on execution, in the same manner, on a judgment obtained against them, as it would have been on a judgment against their ancestor.
    But the statute has not said so, and we know that land in some countries may be subject to be levied on for an ancestor’s debts while living, which could not be levied on at all after his death. What portion of an ancestor’s debts his heirs shall pay out of real estate, depends altogether upon legislation, or custom which is supposed to be founded on lost statutes. In England the heir was only bound to pay specialty debts, not simply contracts. But even debts which he was bound to pay could not be collected by sale on execution, unless a statute authorised the land to be sold. So in Kentucky, there is no lien on the land for the debts of the ancestor, and if the heir or devisee sells the land descended or devised, the title of the purchaser is not affected by a subsequent judgment against the heirs or devisees. (1 Morehead and Brown Stat. 742.)
    These considerations all show that after the death of a man his estate vests absolutely in the heirs.
    The ownership has changed. It ceases to be the right or title of the mortgagor to redeem, because the right to redemption has by law vested in another.
    Now the statute does not provide that all equities of redemption may be sold on execution, but only that interest which the mortgagor or grantor has (in the present tense) in the estate. It makes no provision for the sale of an equity of redemption except while it remains in the .hands of the mortgagor. The statute might have subjected the right to sale, when descended to the heir, but it has not done so, and the court can only enforce the law as it is. The court cannot extend it beyond the language of the act.
    We therefore claim that the proceedings had under the Sloop judgment, did not divest the heirs of their title, because no provision has ever been made by the Kentucky statutes for the sale of an equity of redemption, except while it remain in the original mortgagor. The statute extends no further, and this court will not aid it by any equitable construction, because at law the equities of the parties cannot be considered.
    Hence it has been decided the right to sell an equity of redemption on execution being a statute remedjq does not extend to a distress. (2 Dana, 204, Snyder vs. Hitt.)
    
    So it has been decided that the mortgagee under this statute, cannot by obtaining a judgment at law, sell the equity of redemption of his mortgagor. (7 Dana, 68, Goring's Eu'rs. vs. Slaeve.)
    
    In the next place there is no reason why the court should aid by construction an execution creditor, because the party had a full and sufficient remedy in equity to subject all the equities of defendants to the payment of any judgment against them.
    On the filing of a bill in chancery for the sale of an equity of redemption, the chancellor would have ascertained what mortgages were in existence, and the amounts due on each. By such a proceeding all parties would have known what interest was actually offered for sale.
    While the right to sell an equity of redemption is confined to a judgment against the mortgagor, 'while he is living, he being cognizant of the amount due on the incumbrance, there is not much danger of a sacrifice of pioperty. But to extend the right of sale as against the heirs, who cannot be supposed to know what is due, is certainly going beyond the letter of the statute, and, we think, beyond the true meaning and spirit of the law. We think the Legislature A . ° would pause before authorizing a sale on execution under such circumstances.
    But if the court shall be of opinion, that the statute does authorize a sale of the equity of redemption of the heirs of a mortgagor, on a judgment against them in ordinary cases, we claim that, under the facts shown in this case, no such right existed, and that the sale is void for other reasons which we will now urge:
    1. At the time this judgment was had, and for years before, a bill and cross bills had been pending for the foreclosure of the mortgages existing on this estate, and as early as October, 1845, more than three months before the sale on the execution, the whole of this property had been decreed to be sold under these mortgages.
    We claim that while these bills were pending, and particularly after an actual decree for the sale, no sale of the equity of redemption could be made. (5 Dana, 280.)
    From the time of commencing the foreclosure suit, but certainly from the time the decree for sale was entered, this equity of redemption ought to be considered as in the custody of the court having control of those suits, and not subject to the execution process. This is in analogy to all other proceedings in rem. If this view is correct the proceedings must be deemed void.
    2. We claim, if an equity of redemption can be sold, several equities of redemption of several mortgages cannot be sold at the same time upon one execution.
    If we refer to the language of the statute, we shall find the right is to be sold subject to the incumbrance, not “incumbrances” (in the plural.)
    It might be right and proper, where there was but one incumbrance to permit the equity to redeem that claim, to be sold, because it would be a simple proceeding, but where the right to redeem a multitude 0f mortgages is sought to be sold, the statute ought expressly to authorize it In 1 Pick., 355, it is so held.
    And such, we take to have been the opinion of this court in Lee Co. vs. Fellows <£• Co.; 10 Ben. Monroe, 119, where the court treated a Sheriff’s sale on execution of an equity to redeem land, and an equity to redeem negroes, in gross, as a nullity.
    3. The sale is void, because no mortgage is referred to or identified by the levy or sale. If such sales are allowed, the court ought to protect the judgment debtor, by at least requiring that the particular mortgage or mortgages, the equity to redeem which is sold, should be so referred to, as to enable purchasers to examine the record, so as to ascertain the amount for which the property has been mortgaged. To permit any man to seize an equity of redemption, and to sell it on execution without any mention of, or reference to the mortgage intended to be redeemed, is contrary to public policy, and to all analogous cases. If the object of the Legislature was to enable a judgment creditor to sell on execution an equity, it surely cannot be claimed that the Legislature intended the Sheriff might, under the direction of the plaintiff, make so indefinite a levy that nobody could understand what was intended to be sold. A. court of equity would have decreed the sale of the equity of the particular mortgages found to be existing; and the least that could be required of the plaintiff in execution, or the sheriff who is the plaintiff’s agent, would be the naming of the mortgage or mortgages the right to redeem which is intended to be sold. To require the naming of the mortgagee is no hardship upon the plaintiff or the sheriff, for if it is known there is a right of redemption, the name of the mortgagee is also known, and to require the plaintiff to name the mortgagee, so as to give every person an opportunity of ascertaining what is due on the mortgage, and the value of the thing to be sold, would appear not unreasonable. To dispense with such a requirement, is to induce plaintiffs to sacrifice the interest of the judgment debtor, by withholding from the public a knowledge of the value of the thing to be sold, and thus enabling the plaintiff to buy his debtor’s property for a song. In the language of this court, in Goring Ex’rs vs. Shreve, “such a trap for the sacrifice of estates, under execution, never in our judgment entered into the mind of the Legislature, nor will we give to their enactment, such a mischievous construction.” (7 Dana, 71.) And in 10 Dana, 119, the court, as we have seen, treated a gross sale of an equity to redeem land and negroes as a mere nullity, as an attempt to commit a fraud upon the statute.
    If we look at the practice in other States, where the equity of redemption is allowed to be sold on execution, we shall find that it is 'the usual course to name the mortgage, the equity of redemption in which is attempted to be sold, the amount for which it was given, and to describe the property embraced in the mortgage. (4 Pickering, 279; 1 Vermont, 131; 5 Vermont, 243; 22 Vermont, 141.)
    And it is held, that where the description of the amount of the mortgage is less than the real amount, it will not prejudice the sale, but where the amount of the mortgage is described as larger than it really is, it is strongly intimated that it would render the sale void, as conveying untrue intimations to purchasers or bidders, to the defendants’ prejudice. {Paine vs. Webster, 1 Vermont, 131; Straumvs. Gatlin, 22 Vermont, 141.)
    But the universal practice of describing the mortgage property, and of setting forth the date of the mortgage, and amount of money secured by the mortgage, shows the propriety of what we are contending for, and also shows, that when the Legislature of Kentucky, adopted the statutory regulation of selling an equity of redemption from other States, they intended to protect the rights of debtors, by requiring creditors and officers to so describe the property levied on, and the character and extent of the right sold, as to produce a fair competition. We claim, therefore, that in this view, the levy is void for uncertainty in the description of the thing to be sold, in the same manner that a levy and sheriff’s sale of the fee simple is void when the description is so uncertain, that the identity of the thing sold cannot be ascertained.
    4. We claim the sale is void, because the levy is uncertain in not designating, by a proper description, the land sold.
    It is well settled that the description of land levied upon by execution, must be so certain and specific, that a party desiring to purchase, can, with reasonable diligence, ascertain with precision the property intended to be sold; without this, the defendant is at the mercy of the creditor. The competition at the sale, intended to be secured to the defendant, is entirely destroyed, and the plaintiff thus secures to himself the complete monopoly of bidding at the Sheriff’s sale.
    Description of land in a levy and sale as “the defendants’ lots at Nahunta depot,” is too vague and uncertain, and therefore the deed passes nothing. (Edmundson vs. Hooks, 11 Ired.Law Rep. 376.)
    A levy in execution should describe the property levied on, with such certainty as will enable any one to know the property taken in execution. A levy on one half of a lot, without designating which half, is void. (4 McLean, 329.)
    A levy on 500 acres of land, to be taken off the most northerly side of the widow’s dower, was held invalid. (5 J. J. Marshall, 15.)
    The Sheriff ought to go upon the premises, and make an actual levy; or should see the defendant in the execution, or his agent, and obtain his consent that the execution be levied upon the estate sought to be subjected; or should see and apprize the defendant or his agent of the particular estate upon which he designs levying, and should thereupon make an official and specific entry upon the execution, or upon a paper attached thereto, descriptive of the estate and levy. In the two first modes, it would be the duty of the officer to make the entry upon the execution. (8 B. Monroe, 304.)
    “Levied” is not a valid levy. (8 Monroe, 302.) A levy on the tract, or estate, or right, title and interest of Owings, in the tract of 2,908 acres which was patented to George Nicholas and conveyed to T.' D. Owings, being the tract including the town of Owingsburgh, was held bad.
    • It is the duty of the officer levying an execution to designate so far as may be the nature of the interest to be sold, and if there are several parcels of the same debtor which might as to their extent be described by one boundary, still if there be a substantial difference in the interest which he has in each, as if he be mortgagee of one tract, tenant in common of another, and tenant for life of the third, it is the duty of the officer to make the discrimination, and not by sale en masse sacrifice the whole, (7 B. Monroe, 689.)
    A levy was made on a tract of 600 acres in the county of Oldham. The Marshal returned that Lawrence Young undertook and agreed to pay off the whole amount of all the executions, for 190 acres of said land, and no person offering to pay more, it was struck off, &c. It was held the sale was void, because it did not distinguish the part sold: the statute law providing, “lastly to sell the lands, tenements and hereditaments in possession, reversion or remainder, or so much thereof, in one or more entire parcels, as shall be sufficient, and such parts as the owner shall direct, if he thinks proper.” (Act of 1798, Litt. 41 Sioiget't’s Big. 513-14.)
    Now the description of the levy in this casé, is only that the Sheriff levies on “the equity of the redemption of the said heirs of Howell, deceased, in and to about 375 acres of land near Covington, .on the waters of Willow Run, the late residence of said Howell, and now of said heirs, and particularly described in various deeds to said Howell from the heirs of William Martin and others.”
    This contains no description of the property, and the reference to deeds from Martin and others is wholly uncertain, because to whom the word others was intended to refer, cannot be ascertained from the paper.
    And at the time of the levy, the heirs had the right to redeem these equities. Can the court say which of these equities was sold?
    5. Again, we insist this levy and sale is void, because it does not appear that the Sheriff was ever on the land said to be levied upon, or that he made known to any of the defendants his intention to levy upon the land in question. These iacts should appear in evidence on the trial, where the title set up depends upon a Sheriff’s sale, as was held by this court in McBurnie vs. Overstreet, 8 Ben. Monroe, 304.
    Now, in the case before the court, there is no evidence of any levy having been made, except what appears on the execution, and it does not appear, from the 'return, that the Sheriff was ever on the land, or that any of the parties were called upon, or that any intimation was given to any of the parties, that the Sheriff had levied, or intended to levy on the land, or on the equity of redemption, and therefore, under the above decision, which was in an ejectmeut cause, the levy in this case ought to be held void.
    6. In the next place, the statute requires the purchaser to execute a bond to the Sheriff, that he will not.sell the property in twelve months. No such bond was given, and we claim that in consequence of this, the sale was void.
    The whole case shows that a great sacrifice of the defendants’ property was made, that the plaintiff in the¡ execution was the purchaser, and made a large «peculation by the unfair proceedings referred to, which he could not have done, had he made the levy in such a manner as fairness and justice required. Such a purchaser is not entitled to any sympathy. He is treated very differently from a purchaser who is a total stranger to the proceedings. He is bound to show that everything is fair and correct, or his proceedings will be held void.
    We submit then, that the Judge below erred in the particulars pointed out in the record, and that the judgment out to be reversed.
    
      Morehcad mid Brown, on the same side—
    On the 23d June, 1845, the Sheriff of Kenton county, having in his hands two executions in behalf of Hiram Sloop vs. the Administrator and heirs of A. P. Howell, one for the sum of $4,329 56 and costs, the other for the sum of $1,437 62 and costs, levied the same upon the equity of redemption of the heirs of Howell, in a tract of about 375 acres-of land, in Kenton county, near Covington. The judgment under which it is alleged the execution issued for the larger amount does not bear interest; the smaller judgment is for interest, but neither execution calls for interest.
    On the 19th January, 1846, the Sheriff returns that he sold, on that day, the equity of redemption of the heirs of Howell for $2,777 73, and under the smaller execution for the sum of $922 27. He does not seem to have sold for a gross sum under both executions, and divided the proceeds ratably. In section eight of the execution law of 1828, (Stat. Law, 636-7) it is provided “that where two or more writs against the same person shall come to hand at the same time, the Sheriff or other officer shall proceed to levy and sell in virtue of all;” and if the proceeds of'the sale do not pay all their shall be a, pro rata distribution of the proceeds of sale. The law, it will be readily perceived, was not complied with.
    The deedto the purchaser recites a levy upon about 370 acres. The deed recites that the land was sold under both executions at the same time and place. But there seem to have been separate and distinct sales. If the entire equity was sold under one execution, the heirs might have redeemed within the year by paying the amount of the sale. If there were two legal sales, it must have been of two separate parts of the equity, but what this was is not shown, and the heirs could not redeem either one. In the case of Addison, fyc. vs. Crow, 5 Dana, 280, this court said that a sale of an equity of redemption, when a suit is pending for the foreclosure of the mortgage, is “inoperative and void.” The other points have been sufficiently elaborated.
    
      J. W. Stevenson, on’ the same side—
    Í. We maintain there is no judgment »to support either execution.
    The judgment first relied on is lor $4,329 56, with interest from 26th April, 1848.
    The execution purports to issue on a judgment for $4,327 56, without interest.
    
    It will hardly be contended that a judgment, bearing interest is or can possibly in a case like this, be the same as one without interest. They are totally distinct, and for entire different amounts.
    It is not, as the learned counsel supposes, a clerical mistake in copying. The objection was taken in the court below, and the difference pointed out. For a clerical misprision of the Clerk in issuing the exe- . cution originally, it is too late to ask for a correction. The same objection applies to the second execution. The second judgment bore interest — which does not sustain or authorize the second execution, as issued.
    2. We maintain that the description in this levy is void, for uncertainty in not setting out the several mortgages. There were four mortgages executed by Howell — it is not pretended that these equities were not separate and distinct as to value and amount. Unless a purchaser knew what the mortgages were, and their amounts, he would always be deterred from bidding, while an administrator or infant heirs would never have been enabled to know what they were to redeem.
    3. The sale was palpably void,because the statute of 1828 did not authorize or subject the interest or equity of redemption of the heirs to execution.
    It is admitted that they are not included by the words of the statute. The Legislative intent, to have included his heirs under'the words “interest of the mortgagor,” must he made apparent. We admit it is the duty of the court to carry out the Legislative intent, and in arriving at it, the context, subject matter, the effects' and consequences, and reason and spirit of the law should be called in to aid in ascertaining this intent.
    The words of the statute, in not including “the heirs,” is prima facie evidence that the Legislature did not intend to include them. The reason for their exclusion rests upon the most benign and enlightened principles of legislation.
    The Legislature evidently intended that the interest of infant heirs should not be sacrificed, by subj ecting their equitable interest in mortgaged property to execution sales.
    It has long been held that the mortgagor cannot, by a judgment at law and on an execution issuing thereon, levy the same on the mortgagor’s equity of redemption to the mortgaged premises. (7 Dana, 64; lb. 220.) The reason of this is, that having already a mortgage lien on the debtor’s property, he might purchase it in, extinguish the incumbrance, and thus defeat the very object of the statute, which requires and intended to effectuate the design of making the purchaser hold subject to the statute. So it has been held, that a creditor whose debt has been named in the mortgage, shall not be permitted to assert his execution lien against the mortgaged premises, although he is not the mortgagor and his debt had been included in the mortgage without his knowledge or. consent. In discussing this very question this court says: “And although it be true that this construction may throw the creditor into a court of equity, because his debtor, without consulting him, has made a mortgage which secures his debt; this is no more than the debtor could have done before the enactment of the statute. And he is left in that condition, not as a consequence of anything he has done, but because the statute, upon a fair construction, does not apply to his case; and because, if the statute could be construed otherwise, and if it should be supposed that, not having voluntarily taken a mortgage, he is entitled to a favorable construction of it, we say that the evils which MUST FOLLOW FROM AN EXTENSION OF IT TO HIS CASE, GREATLY OUTWEIGH THE PARTIAL INCONVENIENCE WHICH IIE MAY SUSTAIN FROM NOT BEING EMBRACED WITHIN IT.” (Bronston vs. Robinson, 4 Ben. Monroe, 144.)
    This case, and those referred to, establish the fact, that there are exceptions contemplated by the spirit of this statute, and that this court is not disposed to extend to an inconvenient and dangerous extent the operation of this statute. Could a stronger case be presented than the case at bar, for an exemplification of the safety and conservative reasoning of the court, in their unwillingness to extend beyond the express words of this statute its necessary operation? Here is an old man suddenly swept from the world, away from home, with a large family and many of them infants, with a large estate which, with a little time, would have been ample to have paid every debt with interest that he owed, and have left $100,000 to his orphan children ! The bills for a foreclosure had been pending for years, and were ready for a decree almost at the period when these judgments were had. That decree was rendered before these sales took place, without any one to look after their interest; with no assets to redeem — 130 acres of land, proved in this record to have been worth, two years ago, $800 to $1,000, per acre, is sacrificed for the poor pittance of four thousand dolJars. We solemnly ask this court why should such a construction be given to any satutef which should bring about so monstrous a wrong? Cm bono? Not for the creditor, who could easily have had, in this case, a return of no property, have become a party to the equitable proceedings for foreclosure, and been provided for in the very decrees on the mortgagees, by which their debts were realized. Why should infant children be made the mere playthings of creditors, and stripped of their patrimony by a construction of the statute, not authorized by its words, nor sanctioned by a just legislative intention? The court requires no stronger evidence than the facts disclosed in this record of the ruinious sacrifices, which it is possible for a creditor to effect under such a construction.
    There was an indecent haste and hurry in these proceedings, and an-admission by the administrator, as to the justice of Sloop’s account, which shows, at least, an unwillingness to have his accounts subjected to the Chancellor’s scrutiny. This court has held that the policy of the statutes of 1824 and 1828 which subjected equities to execution, was to substitute the liabilities of choses in action for the ca-sa, and such a policy would hardly extend to. heirs.— (Snyder vs. Hitt, 1 Dana, 205.)
    It has also held that the purchase under Sheriff’s sales of the mortgagor’s equity of redemption, if made for less than two-thirds of its value, is subject to redemption within twelve months; (Abel vs. Wilder, 7 Ben. Monroe, 532-3;) and that the legislative intent, by the statute of 1828, was not to divest even the mortgagor of the possession until the twelve months had expired. Is not such an intent inconsistent with the view that the interest of infants might be reached by such a statute, and when they are clearly incapacitated from the power of redemption?
    4. Could this equity have been subjected to execution on the eve of an interlocutory decree, foreclosiiig these mortgages?
    The authorities cited by the other side were attachments in which the legal title was not divested. In mortgages the legal title is out of the mortgagor, and his equity is under the control of the chanc ellor. The cases, therefore, do not militate against our position. In Addison vs. Crowe, 5 Dana, 280, this court says “that a mortgagor has no right to giv e any direction for the sale of his equity redemption after a bill filed for foreclosure, and that a sale of this equity, under such circumstances, would be inoperative.”
    This rule is sanctioned by direct authority in New York, and by sound policy every where. It prevents confusion and sacrifice. Every consideration of public policy would seem to indicate that a proper construction, therefore, of the statute of 1828, should confine it to the mortgagor, and not extend it beyond the words of the statute to the heirs. Should, however. such an extension be given, it becomes doubly important to the rights of infants thus exposed, that the creditor should not be entitled to this lien after- a bill for foreclosure has been exhibited, but that he should come into a court of equity, exhibit and prove his claims there, where the rights of an infant can be fairly’ protected.
    We invoke the attention of the court to the fact, that the attorneys of Sloop were the purchasers of this property. A purchase by an attorney will always predispose the chancellor to look on the transaction with peculiar scrutiny .and jealousy, and should never be sustained when it was for a grossly inadequate price. (4 Johnson, Ch. R., and other authorities cited; Howell’s heirs vs. M’Crery’s heirs, 7 Dana, 388.)
    In the present, case we are in a court of law, but when it is perceived that Sloop is a non-resident, (as is shown by his bond for costs) and that one of the attorneys, Daniel Mooar, became the owner of this property, and that the defendants claim under him; that $120,000 were sold for $3,700, that sale made in indecent haste, under a questionable and loose levy, if sustainable at all, and of equitable interest, of infants; does it not amount to such a fraud as vitiates the sale? Will this court lend its power to sustain such a sale?
    As the other points have been fully dwelt on by my distinguished coadjutors, I submit the cause, with the confident assurance that the law is for Howell’s heirs, and that a new trial should have been granted. A reversal is, therefore, respectfully asked.
    
      Wm. B. Kinkead, for appellees—
    It is urged by the counsel for appellants, that these levies and sales are void, and that the Sheriff’s deed conveyed no right or interest; and to sustain this position they make a number of points which I shall proceed to answer, one by one, in their order as they are presented.
    1. They contend that an equity of redemption which has descended from the ancestor to the heir cannot be subjected to a levy and sale, under an execution which issued upon a judgment against the heir.
    It is true that such estate is subjected to levy and sale under execution, only by virtue of the Kentucky statute. It is moreover true that real estate could not at common law be sold under an execution of Ji. fa. and can only be sold by virtue of the Kentucky statute. The words of the statute authorizing the sale of the equity of redemption are as follows :
    “When estate, real, personal, or mixed, is covered by mortgage, &c., all the right, title, and interest, legal or equitable, which the mortgagor or grantor has in said estate, shall be subject to be levied upon and sold by execution in the same manner as such property might have been sold if no such incumbrance had existed.”
    Now, it is contended that this statute only makes the equity of redemption liable to sale while held by the mortgagor, and that upon his death, when his right and interest descend to his heirs, it is no longer liable to execution; that this statute, which gives a power not existing at common law, cannot be construed to embrace a case beyond the letter of the statute itself.
    This view of the statute seems to me to be altogether too confined and technical, and altogether opposed to the uniform manner of construing such statutes adopted by this court.
    This is a remedial statute, not in derogation of the common law, but giving an additional remedy for the collection of debts not known to the common law. Such statutes have, by this court, been always liberally expounded in order to carry out the manifest will of the Legislature. And if a literal construction of an act would evidently fall short of the object of the Legislature, they have not confined themselves to it, but have given a more liberal construction in order to effectuate that object. (See the case of Philips vs. Pope's heirs, 10 B. Monroe, 172.)
    ' In the case of Mason vs. Rogers, 4 Litt., 377, the court says, “that it is an established rule of construction, applicable to all remedial statutes, that cases within the reason and not within the letter of a statute shall be embraced by its provisions.”
    The heir stands in the place oí the ancestor. He holds an equity of redemption just as it descends to him. And there can be no possible reason why, with all the guards and protection our statutes throw around the heir while an infant, that for a debt of the ancestor such an interest which descended to him should not be subject to a levy and sale under execution.
    By the act of 1792, Statute Law, 316, the same action which will lie against an executor, &c., may be brought jointly against them and the heir. By virtue of this statute, lands descended may be, and are often sold under executions. It seems very clear, as I think, the Legislature intended thus to subject to sale any interest they might hold in land thus descended to them.
    There is certainly no analogy between the present case and that cited by the counsel for plaintiffs, of a sale of the equity of redemption under execution, upon a judgment for the debt embraced in the mortgage. it is well settled this cannot be done. But the reason of this rule rests altogether upon a different principle than what would apply to the present case. An examination of the decisions upon that point, will clearly show that no argument can be thence drawn to sustain their present position.
    2. But it is further contended, in the second place, that the sale under an execution was void because there was a bill pending by the mortgagees for a foreclosure, when the levy and sale were made under the execution.
    It seems to me there can be no plausible reason for such an objection. The statute makes the equity of redemption subject to the execution as other property. It is this interest which is to be sold and which is not changed by the fact that suit at the time of the levy has been commenced by the mortgagee for a foreclosure. This was a right in him so soon as his mortgage was forfeited, and his commencing suit neither diminishes nor increases the interest of the mortgagor.
    But this court has repeatedly settled the principle involved in this point. In the case of Oldham, vs. Scrivenor, 3 Ben. Monroe, 580, this court decided “that land which has been attached in chancery, may still be sold under an execution against the owner or defendant in the attachment. And the purchaser under the execution takes it subjected to the equitable lien thereon.” And in the same book, (3 Ben. Monroe, 134,) it is settled “that though a bill may be pending to render effectual a mechanic’s lien, a sale under an execution will vest the purchaser with any interest of the defendant beyond what is necessary to satisfy such lien, and to that extent the sale would be effectual.”
    3. But it is contended, in the third place, that the sale under the execution was void because no mortgage was referred to in the levy and sale.
    It has been decided by this court that the sale of all one’s right, title and interest, carries that interest, whatever it may be. (See the case of Daugherty vs. Lintldcwm, 8 Dana, 189.)
    The statute making the equity of redemption subject to execution makes no such requirements. This interest can be known by all. The records are public. All mortgages, no matter how many, to be effectual, must be found there. All who wish to buy can then see and know what interest they are buying. It is conceived no practical benefit would be derived by requiring the Sheriff to describe what mortgages were upon the property. All persons wishing to bid for property would prefer having an examination made by one better qualified to make such an examination than the Sheriff. Nor is it the practice of Sheriffs in making such sales.
    But whether the Sheriff ought to have done so or not cannot vitiate the sale. It would, at most, be only an irregularity and not such as to render the sale void.
    4. But it is claimed, in the fourth place, that the sale is void because the levy does not sufficiently describe the property. The cases cited to sustain this position have no resemblance to the present.
    It is described on the levy as “about 375 acres of land, near Covington, on the waters of Willow Run, the late residence of said Howell, and now of the heirs, and particularly described in various deeds to said Howell from the heirs of Win. Martin and others.”
    This description seems to me to be complete and such as renders it perfectly certain what land is levied on. It is shown that Howell in his lifetime resided on this tract, of about that quantity of land; that he lived there many years, having bought most of it from Martin, and a small portion from others; that this was his residence at the time of his death; that his heirs lived on it after his death, and were, at the time of the levy, residing on it. It was near the city of Covington, on the waters of Willow Run. And this tract was well known as “The Howell Farm” from his long residence thereon. The Howell tract embraced the quantity of land leA'ied on. It was all in one tract, and from what appears, Howell had no other land in that vicinity, besides this, upon which he, and his heirs after him, resided.
    Such a description of the land as, in this levy, would have been sufficient in a bond for a title to have secured the same, and surely would have been sufficient in a levy. In the case of Hanly, fyc.,vs. Blackford, 1 Dana, 4, this court decides “that such a description, ‘Adjoining them on the north,’ in a bond for a title to land of the vendor, adjoining land of the vendee, is sufficiently definite to take the case out of the statute of frauds and perjuries.” The present description is much more definite than the one above cited. The cases cited by the plaintiff’s attorney, it is conceived, have no bearing upon the present issue.
    Again, it is insisted by the plaintiffs, in the fifth place, that the levy was void because it does not appear that the Sheriff was ever on the land said to be levied on, &c., and in support of this point the court is referred to the case of McBurnie vs. Overstreet, 8 B. Monroe, 304.
    By the examination of the case cited, the court will see that the matter therein settled, bears no relation to the point here made. That was the case of the act of the Sheriff, who, in his return, which was made after he went out of office, says his levy was made while in office, and the sale after he went out of offiee. There the court says “the return by him of his levy and sale are prima facie evidence thereof, subject to be impeached and falsified by extrinsic testimony.”
    In the present case the Sheriff made the levy and sale while in office. He makes the proper return of his official act, and this is conclusive between these parties, as has been too often decided to require any parade of authority. But even if it were allowable, there is no evidence that the levy was not properly made.
    It is contended in the sixth and last place, that the statute requires the purchaser to give bond to the Sheriff that he will not sell the property in twelve months, which was not done, and hence the sale was void.
    The words of the statute are, <:that he will not sell or remove the property out of the State.” By a careful examination of the statute, the object to be effected, and the purpose of this provision, it will be most manifest that this part of the statute applies wholly to sales of personal property. It can apply to nothing else. Real estate cannot be removed. And the defendant having the right of redemption for twelve months, obviates all the necessity for a bond, which, in reference to real property, would be preposterous indeed. The . party purchasing the equity of redemption can make no sale which wall affect any of the rights of the defendant in such execution .
    That the plaintiff on this execution made this purchase, has no effect to invalidate the sale. When he has acted in good faith he has as much right to buy as any other person, and the sale is just as valid. (See Sanders vs. Norton, 4 Monroe, 465.) The sale in the present case was fairly conducted. There is not the slightest evidence of any collusion between the plaintiff, in the execution, and the Sheriff or any other person.
    The land, at the time of the sale, was held at alow rate. It has since that time greatly enhanced in value, as the city of Covington has grown. And now and thus incited, the plaintiffs have made this effort to l’ecover that which, many years ago, was sold for perhaps its full value to pay the just debts of their ancestor.
    
      James Harlan, on the same side—
    1. At the time Howell died, he was in the possession of the land, and claimed it as his property.— Upon the payment of the money for which it was mortgaged to the Northern Bank, Beatty & Co., and Thompson & Co., the legal title, which had vested in the elder mortgagee, would eo instanti vest in Howell, without any writing whatever. (1 J. J. Mar., 557, Breckinridge vs. Ormsby.) The right which existed in Howell uponhis death descended to his heirs. They occupied precisely the same position, and were entitled to all of the rights which were possessed by their ancestor when he died. It was their estate incumbered by the debts set forth in the mortgages, and upon their payment, the title would vest in the heirs.
    Sloop instituted two actions of debt against the personal representative and heirs; pleas were filed and verdicts and judgments rendered against the defendants. Upon the judgments executions issued to the sheriff of the county in which the judgments were rendered and the defendants resided.
    The correctness of the proceedings thus far has not been questioned. The sheriff levied the executions “upon all the right, title and interest, in and to the equity of redemption of the said heirs of said Howell, deceased, in and to 375 acres of land near Covington,” &c. It is expressly stated by the Sheriff, that the administrator had no assets in his hands to pay the executions. A sale was made and Sloop, by hi& attorneys, (he being a non-resident as the record; shows) purchased the interest sold, for $3,700.
    It is now contended, that nothing passed by the sale, because the interest, right or title which the heirs of Howell had in the land was not liable to be levied upon and sold under execution. And whether it was or not, depends upon the construction which this court may put upon section 36 of the execution law,(l Statute Law, 653.)
    That section reads: “When estate, real, personal or mixed, is held or covered by mortgage, deed of trustor other incumbrance, all the right, title and interest, legal or equitable, which the mortgagor or grantor has in said estate, shall be subject to be levied upon and sold by execution, in the same manner as such property might have been sold if no such incumbrance had existed; and the purchaser shall take it, subject to such incumbrance, and may pay off and discharge such incumbrance, and thereby perfect his title thereto, in the same manner as if the grantor, mortgagor, or ■other person having an equity of redemption therein anight do: Provided, however, That when such property shall be real estate, then the mortgagor or grantor •shall have the right to redeem the same within the year, but if the purchaser under execution shall have paid off and redeemed the real estate from such incumbrance, then the grantor or mortgagor shall also repay and refund the amount properly paid by such execution purchaser in discharge of such incumbrance, within the same time, and payable in the same manner as the purchase money is by this act made payable.”
    Then follows .a proviso “that the purchaser or purchasers of any such mortgaged property, shall, before he takes possession of the property, give bond and security, that he will not within twelve months, sell or remove the property out of the State, but that he will, during that time, have the property at all times forthcoming, unavoidable accidents excepted, to any order or decree of any court of competent jurisdiction.”
    Another proviso is added giving courts of chancery power to control the estate, and prescribes the nature or character of the bond to be executed by the purchaser, and the remedy to enforce a compliance with its provisions.
    If the property “shall be subject to be levied upon and sold by execution in the same manner as if said property might have been sold if no such incumbrance had existed,” we are to ascertain whether, if no incumbrance, had existed, it could have been sold under the executions issued on the two judgments obtained by Sloop against the administrator and heirs of A. P. Howell.
    The second section of the act of 1792, (1 Lilt. L, K., 128; 1 Stat. L. 778,) provides, that “the same actions which will lie against executors or administrators may be brought jointly against them and the heirs and devisees of the dead person, or both, and shall not be delayed for the non-age of any of the parties.”
    This section is eopied from the act, entitled, “an act subjecting lands to the payment of debts,” approved, December 17, 1792. (1 Litt. L. K., 138.)
    It was decided by this court at the spring term, 1805, in the case of Thomas vs. Marshall, Hardin, 19, that an equitable interest or claim to lands was not the subject of levy and sale under the act of ’92; that the act meant legal rights only. The court, however, proceed to say-: “But -in considering: what are, and what are not equitable interests, *nd from the view which the court has taken of the manner in which a man may acquire and complete a title to lands, it is the opinion of the court, that an entry or survey for lands is an inchoate and incomplete legal title; they will descend, may by devised, or aliened, and that they vest such legal interest, as under the provisions of the act, may be sold by virtue of executions.” Similar decisions followed, (see 3 Bibb, 366; 2 Bibb, 94; 4 Bibb, 266.) All, however, before the act-of 1821, subjecting equitable interests to execution. The only change or amendment of the act of ’92 is contained in the act of 1819, which authorizes a separate action against the devisees or heirs where a previous judgment against the executor or administrator had proved ineffectual. (1 Stat. Law, 780.)
    ■ All the l’ight, title and interest which A. P. Howell had in the land at the time of his death descended to his children. He was in the possession of the land at his death, and his children remained in the possession thereof afterwards, claiming it as heirs of their deceased father, and they were thus possessed when the executions of Sloop were levied. The executions that issued on the judgments recovered by Sloop, commanded the Sheriff of Kenton county “that of the estate of A. P. Howell, in the hands of Julius Brace, his administrator, and of Elizabeth Ann Edwards, &c., (giving the names of all the heirs) descended from their ancestor, the said A. P. Howell, deceased, you cause to be made the sum of,” &c.
    Now, if the heirs had an interest in the land which “descended” to them from their ancestor, the Sheriff was authorized and required to levy the executions thereon, and make ‘sale thereof; because the act of 1828 made it subject to levy and sale by execution uin the same manner as such property might have heen sold” if no mortgage had been executed.
    It seems to me, that this view of the question is conclusive.
    But it is contended on the other side, that the 36th section of the execution law of 1828 only authorizes a sale of real estate that has been mortgaged where the execution is against the mortgagor; and that in the event of his death, and a judgment is rendered against his heirs, such mortgaged estate is exempted from sale by execution against them.
    
    It seems to me that the argument to support that construction of the section may, with propriety, be deemed hypercritical.
    It is well known to all Kentucky judges and lawyers that the execution law of 1828 was very unskillfully drawn, that the draftsman was very unfortunate in the use of words to convey his meaning.
    If every part of the 36th section is to receive a 
      literal construction, the purchaser of an equity of re-deception in land would be compelled to execute bond with security that he would not, “within twelve months sell or remove the property out of the State,” but neither the draftsman of this act, lior the Legislature, intended any such ridiculous act to be done by the purchaser as to give bond not to remove land.
    
    The language of this court in the case of Philips vs. Pope’s heirs, 10 B. Monroe, 172, upon the construction of statutes, applies with much force to the pre-. sent question. The court say: “But while it is admitted that the court has no power to make the law, it is equally true, that it is their province and duty so to expound the statutes as to ascertain and effectuate the will of the law-makers: And experience has shown that if every word or clause of every statute were to have its literal force and effect, without regard to the context and spirit of the whole, or to the subject matter, or the causes or the consequences of the enactment and of the construction, some statutes might be found wholly incapable of enforcement, while others might, in their operation, defeat or fall entirely short of their manifest object. Upon this subject we quote from the opinion of this court, in the case of Mason vs. Rogers, 4 Littell, 377, the following passage not less truly than forcibly expressed. The court then said: ‘The literal interpretation of an act is certainly not, in all cases, the interpretation which either reason or law requires to be given to it; for it is not the words of the act, but the will of the Legislature which constitutes the law; and though words are the most common, they are not the only signs of the legislative will. The context, the subject matter, the effects and consequences, and the reason and spirit of the law, are often called in to aid in ascertaining the intention of the Legislature, No language is, indeed, so perfect as to afford words to express every idea upon all subjects; and even where words are not wanting; those that are most happily adapted to the purpose in view, do not always occur to the minds of the Legislature. Hence it is that words are employed which sometimes go beyond the legislative will, and sometimes fall short of it, which sometimes are too general and comprehensive, and sometimes too particular and restricted. And it is, therefore, an established rule of construction, applicable to all remediable statutes, that cases within the reason and not toithin the letter of a statute, shall be embraced by its provisions, and cases not within the reason, though within the letter, shall not be taken to be within the statute.”
    The case of Mason vs. Rogers, referred to and quoted from in Phillips vs. Pope, was upon the construction of the laws respecting executions.
    The absurd effect of pursuing the letter of a statute is shown in the case of Feemster vs. Anderson, 6 Monroe, 539.
    The act of ’92 subjected lands to the payment of debts; but it was decided that the legal estate only could be sold under execution or otherwise; for in Buford vs. Buford, 1 Bibb, 305, it was decided the chancellor had no power to subject an equitable interest in land to the payment of a debt. The same act of ’92 authorized a joint action against the personal representative and heirs; and it cannot be doubted that under an execution issued on such a judgment, real estate, of which the legal title was in the ancestor when he died, could be sold as estate descended to the heirs. In 1821, and re-enacted in 1828, the act of ’92 was amended so as to authorize the levy on and sale of land incumbered by mortgage, “in the same manner as such property might have been sold if no such incumbrance had existed.” There is no exception in favor of heirs, and no exemption of land or other property thus circumstanced from being-made liable to the payment of the claims of judgment creditors. And the statute should not be so construed in the absence of anything in it from which it may be Inferred such was the legislative will. If such had been the intention of the Legislature, it would have been declared in a proviso.
    In the case of Bell vs. Commonwealth, 1 J. J. Marshall, 555, it was held, that after the passage of the act of 1821, it was as much the duty of a Sheriff to levy upon, and sell the interest of a defendant in land covered by mortgage, as if he were the absolute and fee simple owner. Nothing is said in that case excepting lands or interest in land which may descend to heirs. 1 contend that the plain and obvious meaning of the acts are that whatever property was liable to be taken in execution and sold when the owner was alive, that upon his death a judgment is rendered against his heirs, that the same property is liable to satisfy the execution against them as it was against the ancestor, and that that is the proper and reasonable construction of the several statutes which bear on the queston.
    That a landlord cannot distrain on the equity of redemption, as was decided in Snyder vs. Hill, 2 Dana, 204, and a mortgagee cannot levy on and sell mortgaged property for the payment of the debt for which the property was mortgaged, and decided in Goring’s executors vs. Shreve, 7 Dana, 68, and that the interest of a mortgagee is not liable to sale on an execution, do not militate against the positions for which I contend, for the reasons stated in the opinions in those cases.
    2. It is contended, that the sale under the executions passed no title, because there was a bill pending for a foreclosure. The rights of the mortgagees were in nowise affected by the sale, because, by the words of the statute, the purchaser took the property, subject to the incumbrances. The statute contains no restrictions upon the right to sell the property of the defendant which may be incumbered. It does not confine the right to sell when no bill is pending for a foreclosure.
    The general principles contended for by the counsel for appellants, is correct in some cases, namely: Where a court of chancery has assumed jurisdiction and has taken the property under its control, process from a court of law cannot interfere and arrest the property from the custody of the officers acting under the orders of the chancellor; but there are exceptions to this rule. In this case, the executions on the judgments obtained by Sloop did not, in anywise, interfere with the suit in chancery, and the complete execution of any decree that might be rendered. The sale of the equity of redemption and its purchase by Sloop did not render it necessary to make him a party. He was entitled to anything that might be left after the satisfaction of the mortgage debts. If those debts required the sale of all of the property, then the purchaser of the equity of redemption obtained nothing.
    This court decided in Glenn vs. Coleman, 3 B. Monroe, 134, that land may be sold under an execution although a bill in chancery is pending to enforce a mechanic’s lien. And in Oldham vs. Scrivener, 3 B. Monroe, 580, that land attached by chancery proceedings may nevertheless be levied upon and sold under execution. These authorities are conclusive on that question.
    3. It is also contended that if property is covered by more than one mortgage, or in other words, that several equities of redemption of several mortgages cannot be sold under execution.
    Although the statute uses the words “mortgage, deed of trust, or other incumbrance,” it should not receive a literal construction. The object of the Legislature was to subject any property covered by any kind of incumbrance, to be sold in the same manner as if no incumbrance had existed. There was no reason why the right to sell should be confined to cases where there was but one mortgage. ■ If a person who was involved and wished to prevent his property from being taken in execution,.he could— if the doctrine contended for should prevail — avoid such a result by executing a separate mortgage to each creditor. No good reason can be assigned for such a construction.
    4. It is also contended that the sale is void, because no mortgage is referred to or identified by the levy or sale.
    My answer to this objection is, that the statute subjecting equitable interests to execution does not require the officer to set forth the amount of the incumbrances on the title. As the law required all mortgages to be recorded, it was better that the purchaser shouldmake his own examinations and form his own judgment as to the amount of the liens, and regulate his biddings accordingly.
    It is sufficient for the officer to know that the defendant, in the execution, has not the legal title— that incumbrances exist by mortgages or deeds of trust; and then it is the officer’s duty to sell the right of redemption in the manner prescribed by the statute subjecting such interests to sale.
    5. It is contended that the sale is void because the levy is uncertain in not designating, by a proper description, the land sold.
    It seems to me that the description of the land is sufficiently full to direct the attention of any person who wished to become the purchaser. Indeed, a levy describing the land as the late residence of A. P. Howell, in Kenton county, would have been sufficient for all practical purposes. I submit whether a deed with such a description would not have been sufficient to vest the title in the grantee.
    The return of a Sheriff cannot be questioned collaterally. It is conclusive between the parties.— (3 Litt. 128; 4 Dana, 150; 1 B. Monroe, 68.)
    The Sheriff having returned he had levied on the land, the court will presume, in the absence of any proof to the contrary, that he did every act necessary to constitute a valid levy. {Hickman vs. Boffman, Hardin, 349; Scott vs. Marshall, 5 J. J. Mar. 434.)
    In this case no attempt was made to prove that the officer failed to perform his duty and whole duty. No motion or other proceeding was instituted in the Circuit Court to annul or set aside the sale. And can this court say, upon the face of the papers, that the proceedings by which this land was sold are void?
    6. It is also contended that the sale is void because no bond was executed, as required by one of the provisos of the 36th section. It is a sufficient answer to this objection to say, that the statute does not require a purchaser of land to execute a bond.— It only requires a bond from a purchaser of personal property.
    7. A variance between the judgments and executions is also relied upon as fatal to the title. The transcript of the record does show a slight discrepancy, but there is enough to show that the executions that issued properly, belong to the judgments copied into the record. But this objection will be obviated by the issuing and return of a certiorari.
    
    8. The failure of the Sheriff to indorse the time he received the executions is supposed by the counsel to be an available objection. That part of the statute is directory to the officer, and will not affect the title of the purchaser. (Reid vs. Heasly, 9 Dana, 324.)
    9. The deed recites a levy of 370 acres, when the return shows a levy of 375 acres, is also relied upon by appellants. By referring to the deed it will be seen that the metes and boundaries are given “containing 375 acres 2 roods and 15 poles, be the same more or less.”
    This obj ection is not entitled to any serious consideration.
    It seems to me that the only real question in the case is, whether the equity of redemption was liable to be taken and sold under the executions in favor of Sloop. I have attempted to maintain the affirmative of the proposition. There being no statute exempting it from sale, and as it was liable during the lifetime of the ancestor, that liability continued when it became the property of the heirs by descent. The same property which could have been taken in execution and sold during the lifetime of the owner, is liable in the same manner on a judgment against bis heirs.
    There was no parol proof showing any unfairness or improper conduct by the Sheriff; or that the amount for which Sloop purchased the interest of the heirs in the property was not considered, at the time of the sale, its full value.
    The sale was acquiesced in until about the time this action was brought, and in the mean time, many persons have purchased portions of the land and made valuable improvements thereon, relying with confidence on the validity of the Sheriff’s sale.— Under such circumstances, a court should not, except under very peculiar - circumstances, (which in this case do not exist,) interpose to render invalid a sale made by an officer of the law in virtue of executions issued on judgments for valid and just debts, and thereby deprive innocent purchasers of property which they purchased and improved in good faith.
    Upon the whole case, it seems to me, there is no error in the record, and the judgment of the Circuit Court should be affirmed with costs.
    July 3.
   Chief Justice Marshall

delivered the opinio» of the Court.

Julius Brace and wife and others, the children and heirs of Abraham P. Howell, deceased, filed this petition in ordinary, to recover about twenty-one acres of land, part of a large tract of about 375 acres, which had descended to them from their father, and of which a considerable portion having- been sold under a decree for the foreclosure of three mortgages which he had executed, the residue, of which that now in contest is a part, is claimed to have been sold under two judgments and the executions thereon, against the administrator and heirs of said Howell. The plaintiffs rest their title on the alleged invalidity of these sales, and of the Sheriff’s deed, made to effectuate them. If these are valid, the plaintiffs have no title to the land, and the judgment for the defendants must be affirmed.

1. Of the various objections taken to these sales, the one of the greatest general importance is that which assumes that the 36th section of the general execution law of 1828, which subjects to sale the equity of redemption in mortgaged lands, subjects that interest in the hands of the mortgagor only, and to an execution against himself personally, but not to an execution against his heirs, to whom the equity may have descended. The substantial part of the 36th section, under which the question is made, is that, “when estate, real, personal, or mixed, is held or covered by mortgage, deed of trust or other incumbrance, all the right, title and interest, legal or equitable, which the mortgagor or grantor has in said estate, shall be subject to be levied upon and sold under execution, in the same manner as such property might have been sold, if no such incumbrance had existed, and the purchaser shall take it subject to such incumbrance, and may pay off and discharge such incumbrance, and thereby perfect his title thereto, in the same manner as the grantor or mortgagor, or other person having an equity of redemption therein might do. Provided, however, that when such property is real estate, the mortgagor or grantor shall have a right to redeem it within the year, and if the purchaser shall have paid off the incumbrance, the amount shall also be refunded to him within the year.” The act of 1792, subjecting lands to the payment of debts, (1 Litt. Laws, 128,) enacts in its first section that lands, tenements, and hereditaments shall, and may by virtue of writs of fieri facias be taken and sold in satisfaction of all judgments in a manner hereinafter prescribed. It enacts in the second section, and doubtless as a means of effectuating the enactment of the first, that “the same actions which will lie against executors or administrators, may be brought jointly against them and the heirs, and [or] devisees of the dead person or both. It was decided at an early day in Thomas vs. Marshall, spring term, 1805, that the first section of this act did not embrace equities, but applied to legal rights only, or such title in land, as in case of goods would authorize a levy and sale at common law. If it had been the effect of the first section to authorize the sale under writs of fieri facias of the equitable title or interest of the defendant or debtor, we think it cannot be doubted that the second section would have been construed and understood as furnishing the means of subjecting the same interest to the satisfaction of the ancestor’s’ debt, by obtaining a judgment against his heirs to whom it had descended. The intention was to subject the lands of a debtor to the payment of his debts, and to the extent that lands subject to execution, in the hands of the debtor, had descended to the heirs, the remedy against them in the hands of the latter, while the debt remained unpaid, was intended and understood to be commensurate with that which was given against them, in the hands of the debtor himself. Equitable titles or interests, not being subject to execution under the statute referred to, were not legal assets when descended to the heirs, and were not the foundation of a judgment against him, on the plea of nothing by descent. In the case of Brown vs. Bashford, 11 B. Monroe, 67, it was decided that a resident citizen of this State, could not be made liable here for a simple contract debt of his father, on the ground that lands situated in the State of Ohio had descended to him as heir of his father, principally, because the assets in Ohio could not be reached here, “and therefore do not seem to be the proper ground of a judgment which, according to its terms, indicate its real foundation should be levied on the assets descended.” And the case of Payne vs. Logan's administrator, 4 Bibb, 402, is referred to as deciding that a devise of land lying out of this State, did not make the devisee liable as such to an action here; and as saying that such lands would not here be assets in the hands of the heir; and in the case of Harrison vs. Campbell, 6 Dana, 263, the court conclude their answer to the third objection made to the decree, with the following sentence, page 277: “It may be added, however, on this point, that if, asseems probable from the evidence, the mortgage is for the full value of the property, and the equity of redemption even, as between the heir, and the mortgagee worth nothing, it would not have authorized a judgment against the heir for any amount, and the jury might, in that case, find nothing by descent.” From which it is evidently to be implied, that if the equity of redemption, which had descended, were of any value, it would have authorized a verdict that assetts to the amount of its value had descended to the heir; which, as is plain from the whole case, would also have authorized a judgment against the heir for the debts not exceeding the assets. And this,' according to the principle of the cases before cited, and also of the case of Harrison vs. Campbell, could only have been on the ground that the equity of redemption having been rendered, by statute, accessible to an execution against the ancestor, descended to the heir not as equitable assets, as they had formerly been, but as legal assets, and was the proper foundation of a judgment against the heir, because it was accessible to an execution against him, and such, as we think, has been the opinion of this court and of the bar and the country, since equities of redemption have been subjected to execution.

1. The equity of redemption in lands which may descend to heirs, is liable to sale under execution, upon j u d g m e nts against the heirs, ior the debts of the ancestor.

The legal and logical consequence, as it seems to us, of subjecting to legal execution the equity of redemption in the hands of the mortgagor, is that when it descends to his heir it is legal assets in his hands; and this consequence cannot, as we think, be repelled by anything short of the clear indication of a contrary intention in the statute, which imparts to the equity of redemption this important quality ot being liable as a legal estate in the hands of the ancestor. The construction contended for, by which this consequence is repelled, derives its entire support fromthe words, “all the right, &c., which the mortgagor has in said estate,” and in fact limits the effect of the substantial part of the statute, by the literal import of the word has, which, being in the present tense, is said to limit the interestwhich may be levied on and sold, to that which the mortgagor has at the time of the levy, or at least at the time when the execution comes to the officer’s hands. Whence it is argued that as soon as it passes from his hands, whether by death or otherwise, it ceases to be in the condition in which it is subjected to execution. But the thing itself and the proper incidents attached to it, remain the same; and although its condition is in some sort changed, by passing from the hands of the indebted mortgagor, yet its essential character is unchanged, and as it passes into the hands of his heirs, where it is still liable to his debts, and makes the heirs also liable to the extent of its value, there seems to be no decisive reason why the character which the law impressed upon it in his hands, should undergo a change by its transmission to volunteers.

The statute intended to subject to execution the interest of the mortgagor or grantor, in estates held or covered by mortgage or deed of trust, and in construing a clause so evidently abounding in superfluous words, it would be unreasonable to place the whole force of this provision upon the words “which the mortgagor and grantor has” W e think they were intended to mean nothing more than to denote the party whose interest, was to be subjected, and are to be understood as equivalent to the words “of the mortgagor or grantor.” And if any inference is to be founded upon the mere words of the sentence, the subjection of his interest to levy and sale in the same manner as if there were no incumbrance, might sufficiently imply, that it may be subjected in the hands of his heir as well as of himself. If the same manner is to be applied to the levy and sale merely, and not to the subjection of the interest, this restricted application, though it furnishes no aid to our construction of the previous clause, places the levy and sale of an equity of redemption which is properly subj ect, on precisely the same footing as if the land itself, instead of a partial interest in it, were the subject of the levy and sale, and no objection can prevail against the mere form or manner of the levy and sale, which would not be available if any other interest than that of the mortgagor were the subject. And there being no more necessity under the directions of the statute, of stating in the levy and sale the particulars of this interest, than of any other, the objection that the interest was not particularised by a statement of the several mortgages which encumbered the land, is deemed untenable.

2. It is not n e c e s aary, to render the sale of an equity of redemption valid, that the sheriff should specifically set forth in his levy and sale, the amount of the mortgage liens upon the land.

It never has been held, nor as far as we know, supposed that it was the duty of the Sheriff to take upon himself the burthen of ascertaining, and the responsibility of stating the value, or the facts which might determine the value of the incumbered interest to be sold. When he states the interest to be an equity of redemption, or the title to land under mortgage, which is all that is usually done, he of course refers every person concerned to the records. And even if he were to copy or to abr'idge the recorded mortgage or mortgages, or were to read them at the sale, the amount due, the real burthen which affects the value of the interest, would not be thereby ascertained. If sacrifice be the probable and usual consequence of the ordinary mode of proceeding in such cases, this may be a good reason for legislative interposition to change the practice, or to abrogate the proceeding by which the interest of the mortgagor is to be sold. It cannot justify the court in avoiding a levy and sale fairly made in the form established by a practice, authorised by the general or vague language of the statute, and on the validity of which an immence amount of property must depend. Nor is this consideration of probable sacrifice in the sale of mortgaged estates descended to infant heirs, a ground for making a distinction in favor of infants which the statutes have not made, or for saying that an equity of redemption, though subject to execution as a legal estate in the hands of the mortgagor, ceases to be legal, and becomes equitable assets when it descends to his heir, and that it is either not the foundation of a judgment against him, or not accessible to an execution upon such judgment. In short, it does not authorize us, in giving construction to this statute, to keep out of view the general principle and purpose of giving remedy against the heir for the debts of the ancestor, and to limit the effect of this statute, as apart of the system for subjecting lands to the payment of debts, by giving an exclusive meaning to a few words which were probably intended to have a general signification, and by giving, extreme force to the use of a verb in the present tense, which, as frequently and indeed commonly found in statutes, refers not only to the present, but-to all time. The construction by which the statute' has been held not to authorize a sale of the equity of redemption on an execution for a debt secured by the mortgage, is not founded in any considerable degree, if at all, upon any extraneous consideration, but chiefly, if not exclusively, upon the ground that as the necessary effect of such a sale is to diminish or extinguish the incumbrance, which the statute' clearly intends to preserve as paramount to the purchase; such a sale would defeat the manifest intention and objects of the statute, and therefore cannot be regarded as being authorized by it; that it-would tend necessarily to a sacrifice of the mortgagor’s interest, is a consideration connected with the other. The cases referred to on this point do not, therefore, apply to authorize the construction! now contended for. And while itis a source of regret that the statute, as we understand it, may operate, and has perhaps, in the present instance, operated tó cause a sacrifice of the estate of infant heirs., we? cannot adopt the construction by which an equity of redemption descended to infant heirs, is to be wholly exempt from the operation of a judgment and execution against them for their ancestor’s debt. The statute certainly authorizes no discrimination between the case of infant and that of adult heirs. And if an equity of redemption descended to the heir be exempt from levy and sale on a judgment and execution against him for his ancestor’s debt, it must be equally exempt from an execution on a judgment against him for his own debt. That the exemption in this last case would be obviously inconsistent with the manifest objects of the statute, vim think is entirely certain. And this, if there were no other reason in support of .the construction which we have adopted, would, of itself, form a consideration entited to great weight.

3. That an execution omitted to issue for interest, when interest was given held not a sufficient ground to invalidate a sale made under it, when there was no suggestion that there was any other judgm e n t between the parties.

2. The next objection which we shall consider, is that the two executions under which the sales are claimed to have been made, vary slightly from the judgments exhibited as the foundation of them. Both of the judgments appear to have been rendered on the 26th of April, 1845. That which stands first, upon the amended record, is for $1,437 33 — the damages found by the jury, with interest from the day of its rendition. The other is for $4,329 56 — the damages found by the jury with interest from the date of its rendition. The jury, in each case, having found that estate had descended to the heirs, of the value of $5,000. The execution alleged to be founded on the-first judgment, is for the sum of $1,437 62, but omits entirely the interest. The other is for $4,327 56, and also omits the interest. Each bears date on the 14th day of May, 1845, and each was levied on the same tract of land at the same time, or at least on-the same day. The first of these executions-appears to form a part' of the same record which contains the first judgment, and the other to form a part of the record of the second judgment. Each of these records is certified in the usual manner, as being a complete transcript of the proceedings in the particular case. And there is no attempt to show any judgment corresponding more nearly than those above referred to with either of the executions, nor to show any execution corresponding more nearly with either of the judgments. Nor is there any suggestion that there were in fact any other judgments or executions between the same parties. There is then not only a presumption, but there is no ground for serious doubt, that each of these executions was issued upon the judgment above stated, to which it most nearly corresponds. It is obvious, therefore, that the slight discrepancy between the executions and the judgments, was merely a clerical misprision, and although there may be a technical varience, it is to slight, in view of the evidence that these executions actually issued upon the respective judgments with which they so nearly correspond, to be the ground of pronouncing the executions or the sales made under them absolutely void and of no effect.

3. It it objected, however, that the returns on the executions show an uncertainty and confusion in the sales themselves, and an illegality, which should render them void. The return on each execution states a levy and sale of the tract of land for a sum considerably smaller than that which the execution authorized, to be made. Upon compairing the two returns, it appears that both executions were levied at the same time, on the same tract of land, and the returns taken literally import a separate sale and purchase of the entire tract, under each execution, for the separate sums stated in the respective returns, and neither return makes any reference to the sale under the other execution. It was no doubt the duty of the Sheriff to have made but one sale under both executions, and to have credited each ratably, or to have credited on the smaller execution its full amount, and to have credited the other by the remaining proceeds of the sale. And although we do not perceive by what rule, if there was a single sale under both executions, the sum produced was divided between them, yet it would be so absurd as well as unusual and irregular to make on the same day two sales of the same entire tract, upon these two executions of the same date, between the same parties, and presumably both in hand at the same time, that we should be disposed to regal’d the two returns as evidencing an awkward attempt at particularity and specialty in each return, rather than as proving conclusively that there were, in fact, two sales.

4. A Sheriff having two executions in behalf of the same plaintiff, and against the same defendant, returns on each execution the sale'of the same lands. Held, ■that whether he in fact made two Bales or one only there was no irregularity of which the defendants in the execution could icomplain.

But if there were really two separate sales, it is to be presumed that the return of each states the truth with respect to it, showing that the entire tract was sold for the sum named in each return; and as, if there were two sales, the one must have preceded the other, it is clear that the first cannot be affected by the second, however irregular and unauthorized the latter may have been; nor would the defendants in the judgments have any right to complain that the entire proceeds of the first sale were applied to the execution on which it was made. Or if this were a wrong to them, the remedy, if there were no other sale, would be by a correction of the credit and returns, and not by quashing the sale, which certainly would not be rendered void by the improper application of the proceeds. Nor do we perceive that the second sale, however illegal and void, could any more affect, injurously, the interests of the defendants therein, than it could make void the first sale. If the second sale be void, the first, which is valid, determined the right and ascertained the sure terms of a redemption. . And although the returns may not, of themselves, show which sale was first made, this fact, if not presumptively determined by the order in which the judgments or the executions stand on the appropriate records, might be determined as a matter of fact by parol proof, and the failure of the Sheriff to designate the order in which the sales were made could not make either void. Nor, while we deem it certain if two sales were made the last did not invalidate the first, do we decide that even the last was ipso facto void, or that it could have been avoided by the defendants who received the benefit, and were not injured by it. But it is so utterly improbable, either that the Sheriff should have made the two sales, as supposed, or that the plaintiff or his attorney, standing by, should either have permitted this course of action, or should, after purchasing the entire tract under one valid sale, immediately purchase, for an additional sum, the same tract again, under his own execution, of which he had complete control, that it was scarcely necessary to have shown that the fact, if so, would not have avoided both, if either, of the sales, and could not have injured the defendants in the executions.

5. The pendency of a suit to foreclose' a mortgage upon land presents no obstacle to the sale under execution of the equity of redemption, in behalf of another creditor.

4. The obj ection that, at the time of the levy and sale under these executions, a bill was pending for the foreclosure of the mortgages on the land cannot be sustained. The pendency of such a bill did not exempt the equity of redemption from a sale which would still be subject to the effect of the decree upon the mortgage. This principle settled, with regard to the effect of suits for enforcing other liens, seems to be equally applicable to the case of a mortgage, and we so decide. This fact, therefore, did not make the sale void.

5. The objections that the equity of redemption was not subject to execution because there was more than one mortgage; that the levies should have specified the several mortgages; that the levies do not sufficiently describle the land sold; that the Sheriff’s deed does not convey the same land levied on and sold, and that the purchase being made by the attorney of the plaintiff, for him, is therefore void, so far as not already answered, may be answered without a detail, which, as to most of them, would be unprofitable, by the general statementthat they are deemed insufficient, in themselves, or are not sustained by the facts .appearing in this case. One or two other objections, not seriously relied on, need not be stated.

Upon the whole case we are of opinion that the Sheriff’s sales and deed were not void by reason of anything appearing in this record, but that so far as the levies, sales and deed, covered the same land, they were prima facia valid, and sufficient to pass the title from the plaintiffs; and the opinions of the court in giving and refusing instructions, and upon the admissibility or exclusion of the records above referred to being in conformity with the principles of this opinion, therefore the judgment is affirmed.  