
    John Doe ex dem. John N. Helm v. The Natchez Insurance Company.
    In an action of ejectment by a purchaser at sheriff’s sale against the defendant in execution, the plaintiff, on the production of the judgment, execution and return and the sheriff’s deed, if there be no fatal defect in either, is entitled to recover. Mere irregularities in the judgment or execution cannot be collaterally inquired into.
    It is a general rule that questions cannot be raised in the high court of errors and appeals which were not raised in the court below; it is therefore important, where objections are offered to the introduction of testimony, that the ground of objection should be stated; and it seems that in no case, unless it be where the evidence offered and objected to consists of matters of record, should the rule be relaxed, of requiring the party malting to state the ground of his objection.
    The reversal of a judgment under which property has been previously sold does not, it would seem, vitiate the sale.
    Under the valuation law, which provided that if property did not bring two-thirds of its appraised value the sale should be postponed for twelve months, the appraisers, in making their estimate of the value of the property levied on, have a right, and it is their duty, to take into consideration the amount of prior incumbrances on the property levied on, when brought to their knowledge, and to deduct the amount of such prior incumbrances from the actual value, in their appraisement; and if the property thus appraised brings two-thirds of the appraisement thus arrived at, the sale will be valid, though it does not bring two-thirds of the value of the property freed from the prior incumbrances.
    The facts that a piece of property belonging to a judgment debtor has been levied on under a previous judgment against him and the valuation claimed by him and the sale postponed for twelve months because it did not bring two-thirds of its appraised value, do not preclude or prevent any other judgment creditor of the same judgment debtor from levying his execution on the same property before the twelve months under the first levy have expired; the statute which prohibited an execution until after the expiration of the twelve months, having reference exclusively to another execution on the same judgment.
    
      Objections not taken to evidence below, at the time it was introduced, are considered as waived; where, therefore, it did not appear affirmatively in the record that the defendant, in an action of ejectment for property sold under execution where the valuation law was claimed, objected to the sufficiency of the execution, levy and return, on the ground that a copy of the appraisement of the property was not delivered to the defendant in the execution, as required by the statute, the high court of errors and appeals regarded the objection as not having been made below, and refused to consider it, when made before it.
    Whether a failure to serve a notice of the appraisement of property levied on under execution in which the valuation law is claimed and the property appraised, will affect the validity of a sale under the execution in which the property appraised brings two-thirds of its appraised value, — Quare ?
    
    Where a sale takes place under execution on a judgment, and the plaintiffs in the judgment give written directions to the sheriff to make a deed to the purchaser, in which directions they state that the amount of the bid had been arranged with them, and the deed is accordingly made to the purchaser by the sheriff, it will be a sufficient payment to make the sale valid under the statute, and to entitle the defendant, on a reversal subsequently of the judgment, to a restitution of the amount of the bid from the plaintiffs.
    It seems that a sale made under a naked power derived from a statute will be void if the statute be not strictly pursued; and if the validity of the deed made under such sale depends upon a matter in pais, the party claiming under it is bound to establish the performance of the act; as in case of tax collectors’ deeds ; a sheriff’s deed is, it would seem, however, regulated by a different rule, as his sales are judicial sales, made under power derived from a judgment; while the powers of a tax collector are derived from the statute. Whether the valuation and appraisement law is constitutional, — Quare ? Whether the failure by a sheriff to- follow strictly the requisites of a statute, on a sale made by him, avoids the sale, — Quare ?
    
    
      In ERROR from the Adams circuit court; Hon. 0. 0. Cage, judge.
    John Doe, on the demise of John N. Helm, sued Richard Roe, i. e. The Natchez Insurance Company, defendants in ejectment. The usual consent rule having been entered into and plea filed, a jury was empanelled, who found for the defendants.
    It appears, from the bill of exceptions, that on the trial it was admitted that the defendants were in possession of the premises in controversy ; and that the plaintiff then offered to read to the jury the record of a judgment for $16,212 50 obtained by Stanton, Buckner & Co. against the Natchez Insurance Company, the defendants in the ejectment, on the 14th of December, 1841, and at the same time offered to read a writ of fieri facias which issued on the 8th of April, 1842, upon this judgment, and the return of the sheriff thereon. The writ was in the ordinary form. The return of the sheriff, made on the 21st of May, 1842, was in substance that he levied the execution upon the following property of the defendants, “ to wit, all that lot of ground commencing on the corner of Pearl and Market streets, and running thence,” &c,, describing the land and tenement in controversy.
    That the sheriff was notified by defendants that they claimed to have the same appraised according to the provisions of the act on that subject.
    That Lemuel Pitcher was appointed appraiser on the part of defendants; John Knight on the part of Stanton, Buckner & Co.; and William K. Henry on the part of the sheriff, who each took the oath required, on the 25th of May, 1842.
    On the 30th May, 1842, they certified under their hands and seals, as to the land and tenement in controversy, their appraisement, as follows, viz. :
    “ We, the undersigned, appointed as appraisers for the purposes contained in our affidavit, having been duly sworn, have examined the property levied on, and appraise the same as follows, to wit. The brick premises between Bank alley and Market street, occupied by defendants and others, at the sum of $10,842. This valuation is made after deducting the sum of $8,158, which amount is for the executions, one at the suit of R. Parker, and the other of the Planters Bank against same defendants, made up in cash to this date; said executions having been levied on this same property, and returned under the valuation law to November term, A. D. 1841, per statement herewith filed, furnished by the sheriff, which makes the valuation above stated, free of all iucumbrances.”
    The sheriff’s statement consisted of a venditioni exponas to November term, 1841, in favor of Rhasa Parker, on a judgment for $3,561, with interest and costs, amounting to $4,055, against the defendants, — and a venditioni exponas in favor of the Planters Bank on a judgment of June 23d, 1841, for $3,742 45, amounting, interest and costs, to $4,103, also against the same defendants. The sheriff adding underneath the statement the following, viz.:
    “ The above amount in cash this day has been formally levied on the brick premises on Pearl street belonging to the defendants, May 30th, 1842, say eight thousand one hundred and fifty-eight dollars. Attest. S. B. Newman, Sheriff.”
    The return further sets forth the mode of notice of sale, and the sale; the latter as follows, to wit:
    “Said property was offered by me at public auction at the door of the court house, within the hours prescribed by law, to the highest bidder for cash, on this day, and sold as follows, to wit: The brick premises between Bank alley and Market street, on Pearl street, occupied by defendants and others (sold subject to the lien of the other executions, as stated in the ap-praisement, which executions amount to $8,158,) to John Helm for seven thousand two hundred and twenty-eight dollars; which sale was for two-thirds of the appraised value. 30th May, 1842.”
    Under the sheriff’s return is indorsed a letter from Stanton, Buckner & Co., dated 30th May, 1842, directing the sheriff to make a deed to Helm, as he had arranged the amount of the purchase-money satisfactorily with them.
    The plaintiffs at the same time offered to read the deed from the sheriff who made the sale to the purchaser. This deed is in the ordinary form, and recites the payment of the bid by the purchaser to the sheriff as the consideration of the deed. It was at the same time admitted by the defendants, that due and legal notice of the time and place of the sale, mentioned in the returns and deed, had been given by the sheriff, and that they referred to the tenements in question. “ Upon objection being made by the defendants’ attorneys,” says the bill of exceptions, “ to the introduction of said documents as evidence of the title of the lessor of the plaintiff, the court ruled out said judgment, writ and other documents as insufficient evidence of title, arid refused to permit the same, or any part thereof to be read to the jury as such evidence of title.” To this opinion the exceptions were taken; and upon the verdict for defendants being rendered, the plaintiff below, sued out'this writ of error.
    
      Quitman and McMurran, for plaintiff in error, contended,
    1. That the incumbrances were properly deducted; and that the defendants should have objected in. the court below : they cited act of 1840, p. 25; 17 John. R. 167; 2 Saund. R. 68; Cro. Jac, 246, 1 Cow. 644.
    2. That the valuation law was unconstitutional. Green v. Biddle, 8 Wheat. 1 — 84; Bronson v. Kinzie, 1 How. S. C. R. 311; 4 Cow. Dig. 132; 9 Mass. 89; lb. 92; 3 Yeates, 405; 2 Yeates, 148.
    
      G. Winchester, for defendants in error.
    1. 6 Wheat. 119; 4 Cranch, 403; 4 Wheat. 77; Coke Lit. § 434, 2586, note, $ 526; 13 Tes. 586; 11 Wend. 434, 435, 425; 1 Cow. 629; 7 Cow. 90; 4 Munf. 431; 4 Rand. 585; 5 Day, 162; 6 Conn. 373; 10 Conn. 77; 3 Conn. 406; 9 Conn. 9 — 14; 8 Idem, 536, 2 S. & M. 529; 1 How. 561; 3 How. 39; 1 Mass. 88; 2 Idem, 154, 118; 9 Idem, 96 — 99; 10 lb. 315; 11 lb. 165, 166; 14 lb. 20; 7 Pick. 551 — 556; 15 Idem, 28 ; 17 Idem, 440; 18 Idem, 495 ; 13 Mass. 483 ; 7 Mass. 392, GrosvenorY. Little; 7 Greenl. 376; Eastman v. Curtis, 4 Verm. 616; 5 S. & R. 332.
    The above authorities are cited to establish the common law rule, that any officer or individual, selling the land of another under the authority of a statute, must pursue his authority where it is merely a naked power to sell not coupled with an interest; and that if he does not pursue his authority by complying with all the pre-requisites of the statute, his sale is void.
    2. By the forty-eighth section of the valuation law, the sheriff has no authority to make a deed, conveying the land, until he has sold according to the provisions of the act, by virtue of his execution; nor until payment of the purchase-money also; and it does not appear, 1st. ^hat any of the purchase-money was paid by Helm ; nor 2d. That he sold the land according to the provisions of the act.
    1st. It does not appear that the money was paid. 6 Wheat. 119; 4 Wheat. 77; Shepherd’s Touchstone, 76, chap. 5, recitals 3, note 2; Oomyn’s Dig.; Testmoique on Evidence, B. 5 ; Weyand v. Tipton, 5 S. & R. 332.
    2d. The land was not sold according to the provisions of the act of 1840; 1st. It was levied on under two former executions, and not liable to be sold under any other writ, until after the lapse of twelve months from the appraisement under those executions. 2d. The valuation of the property levied on was not according to the provisions of the act, which required the appraisers to examine the property itself, and appraise it; they had no right to deduct the incumbrances. 3d. A copy of .the valuation made, was not furnished the defendants by the sheriff, as required by the second section of the act.
    3. The question as to the constitutionality of the appraisement law cannot be made, in its application to this case, because, 1st. It is a question between the plaintiff and defendant in the execution, with which the purchaser has nothing to do. 2d. Both parties have acquiesced in it, and therefore neither can now object to it. Tooley v. Gridley, 3 S. & M. 493. 3d. If the law was unconstitutional, the sale being made under its provisions would be void.
    4. But the law itself does not impair the obligation of any contract in this case, and is constitutional; it is wholly a remedial law; and the legislature may change the remedy. Pearsall v. Dwightj 2 Mass. Rep. 89; 4 Peters, 662, 663; Sturges v. Crowningshield, 4 Wheat. 197 — 200; 8 Wheat. 1 — 84; lb. 92; 12 Wheat. 378; 13 Mass. 15 — 17; Mc-Cracken v. Hayward, 2 How. S. C. Rep. 608; Middleton v. Croft, Hardwick’s R. 122, 123.
    
      J. Winchester, on the same side, contended,
    1. That the power in the sheriff to sell under the acts of the legislature, was a naked power, uncoupled with an interest, and must be strictly pursued. Williams v. Peyton, 4 Wheat. 77; Litchfield v. Cudworth, 15 Pick. 28; Burton v. Pond, 5 Day, 162; Coe v. Stow, 8 Conn. R. 536; Thatcher v. Poto ell, 6 Wheat. 119 ; Allen v. Thayer, 17 Mass. 299.
    2. That where appraisers deduct from the actual value of laud levied upon the supposed amount of an incumbrance, and the sheriff sells for two-thirds of such appraisement, the sale is void. Barnard v. Fisher, 7 Mass. 71; White v. Bond, 16 Mass. 402 ; Mechanics Bank v. Williams, 17 Pick. 438; Warren v. Childs, 11 Mass. 226.
    3. But it appears, upon the record in this case, that the very land was not subject to be sold under the execution, and the sheriff had no authority to sell the same. The same land was levied upon under previous executions, and the sale postponed, as provided by the appraisement law of 1840, for twelve months, which time had not elapsed when this land was sold. This land then was exempted from sale under execution by law, at the time it was sold, as appears by the proofs in the cause, and the sheriff’s deed conveyed no title in this case.
    The following is the substance of the sections of the statute law commented on in the arguments, and referred to in the opinion :
    By the 48th section of the act of 1822, relating to.executions and insolvent debtors, in How. & Hutch. 644, it is provided that,
    “ When lands and tenements shall be sold, according to the provisions of this act, by virtue of any writ oí fieri facias, capias ad satisfaciendum, or venditioni exponas, or other legal process, it shall be the duty of the sheriff, or other officer, by whom such sale shall be made, on the. payment of the purchase-money, to execute to the purchaser or purchasers, such deed or deeds of conveyance as may be necessary and proper, to vest in the purchaser or purchasers, all the right, title, interest, claim and demand of the debtor, or defendant, which he had in and to the lands and tenements so sold, either in law or equity.”
    
      The act passed 21st February, 1840, commonly called the “ valuation law,” is in substance as follows, viz.:
    Sec. 1. That whenever the sheriff shall levy an execution on personal or real property, the person whose property is levied on may notify the sheriff in writing, that he claims to have the same appraised according to the provisions of the act; whereupon three persons, entirely disinterested, and unconnected, either by consanguinity or affinity, shall be chosen as'appraisers, one by the defendants, one by the plaintiff, or his agent, if present, if not by the sheriff, and a third by the sheriff.
    Sec. 2. These appraisers, having first made oath before some judge or justice of the peace, well and impartially to perform the duties imposed on them, shall proceed to examine the property required to be appraised, and shall appraise the same; and the appraisement, when made, shall transmit, under their hands and seals,'to the sheriff, within a reasonable time before the day designated by the sheriff, as the day of sale of such property so appraised; a copy of which valuation, so made, shall be furnished the defendant or defendants, by the sheriff
    Sec. 3. It shall be the duty of the sheriff, to proceed on the designated sale day, to offer at public sale to the highest bidder, the property so levied on. And should the same not sell for two-thirds of its appraised value, the sheriff shall announce that there is no sale; and such sheriff shall return on the first day of the return term of the writ of execution, for the satisfaction of which such property was intended to be sold, the same, together with the certificate of appraisement, and that the property offered would not sell for two-thirds of the appraised value; and, thereafter, no other writ of execution, or other process, for the sale of such unsold appraised property, shall issue, until the expiration.of twelve months from the time when such execution shall have been returned, as hereinbefore required.
    Sec. 4. After the expiration of’twelve months from the term at which said writ is returned, the clerk shall issue a writ of venditioni exponas, directed to the sheriff, who shall proceed to re-advertise the property; and in the manner, and at the place provided by law, reoffer and sell the same, peremptorily and absolutely; and every such last sale shall create a total divestiture of all the right, title, and interest of the person, whose property has been sold.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

The plaintiff in error purchased a lot in the city of Natchez, at a sale made by the sheriff, under a judgment against the defendants, and brought this action of ejectment to recover possession of the lot, but failed in consequence of the ruling out his evidence, which consisted of the judgment, the execution and the return thereon, and the sheriff’s deed. It is now assigned as error that (he court improperly ruled out the evidence.

In deducing title derived under a sheriff’s sale, as against the defendant in the execution, the usual course is to introduce the judgment, the execution and return, and the sheriff’s deed, and if there be no fatal defect in either, the plaintiff may rest his case. Mere irregularities in the judgment, or execution, cannot be collaterally inquired into.

It does not appear, from the bill of exceptions, on what ground the evidence was objected to, or for what reason it was ruled out. The objection was general, and it was sustained. It is proper, in objecting to evidence, that the ground of objection should be stated, as in that way only can parties be confined in this court to the same ground of objection which was taken in the court below. It is a general rule, that questions cannot be raised in this court which were not raised in the court below. It is our duty to review the decisions of the court below, but if we decide new questions, not raised there, we assume original jurisdiction. This rule should not be relaxed, unless in cases where the evidence offered and objected to consists of matters of record, and even then the propriety of departing from the rule may be questionable. But, waiving for the present the application of the rule, so far as the evidence consisted of matters of record, we will proceed to inquire into the propriety of the decision, on the grounds taken in the argument in this court.

The judgment, under which the property was sold, was re-* versed after the sale, but it is conceded that this did not vitiate the sale. As it was a judgment in full force when the sale was made, we are at a loss to perceive any reason for ruling it out. True it was insufficient alone to prove title in the plaintiff, but this did not affect its competency. It was a question of sufficiency, not of admissibility.

The execution, however, and the proceedings under it, preliminary to the sale, seem to constitute the chief grounds of objection. The levy was made in April, 1842, whilst the valuation law was in force, and the defendants in execution requested in writing that the whole of the property levied on, being real estate, should be appraised according to the provisions of the statute of 1840, and appointed on their part an appraiser; the sheriff also appointed an appraiser, and so did the plaintiffs in execution, and the appraisers discharged the duty, and made return to the sheriff, who afterwards sold the property for more than two-thirds of the appraised value. It would seem, from the arguments, that the evidence was excluded, because of a supposed defect in the proceedings of appraisement. Two grounds have been taken by the plaintiff’s counsel, for reversing the judgment; first, it is said that the- provisions of the statute were strictly pursued, and that the sale was therefore valid ; second, that the appraisement law was unconstitutional, and it was therefore immaterial whether the provisions of the act were followed or not; the sale was still valid. On the other hand, it is contended that the law was not pursued, and that a sale made by a sheriff under a naked power derived from a statute, uncoupled with an interest, is void, if the statute be not strictly followed.

In estimating the value of the property, the appraisers took into consideration previous incumbrances, and assessed the value to a certain sum, -after having deducted the amount of in-cumbrances. In their report they state that the property was subject to two other executions, which had been previously levied on it,.amounting to $8158; that it had been appraised under those executions, and not sold, and they valued the property sued for in this action, at $10,842, after having deducted from the entire value the sum of $8158, on account of the previous executions, which had been levied on it. They were furnished by the sheriff with a statement, showing the parties to the previous executions, and the dates and amounts of the judgments. To this course we see no objection whatever; on the contrary, the appraisers seem to have adopted the true and only mode of arriving at the value. The object of the law was, that the thing to be sold should bring two-thirds of its value. What was levied on in this instance 1 A property subject to incum-brances. The thing to be sold was the residue of the property,, whatever it might be, after the previous executions were satisfied; and this too was of course the thing to be appraised. Nothing could be appraised but that which was liable to be sold under the particular execution. The appraisement was made with reference to the execution, or to the liability of the property to the execution. To require that the entire value should be appraised, when the entire thing could not be sold, would be unreasonable. Nothing could be appraised but the interest of the defendants in the thing levied on. What was their interest in this lot 1 It was subject to liens, and of course their interest was what remained after the liens were satisfied. This could be ascertained only by deducting from the entire value, the amount of incumbrances; the residue was the defendants’ interest, or all that was liable to the execution. The law required that property levied on should bring two-thirds of its value. It is demonstrable that these defendants receive more for this property. It was first levied on by the sheriff under two older executions, and not sold because it failed to bring two-thirds of its value. It was therefore to remain unsold for twelve months, and then to be sold for what it would bring. The amount of the first executions was $8158. It was appraised to $10,842, over and above the amount of prior liens, thus making the entire value amount to $19,000. It sold subject to the lien, for $7228. The purchaser was bound to satisfy the lien by paying the amount. Add the purchase-money to the incumbrance, and the amount is $15,386, which is nearly $3000 over two-thirds of the entire value, a sum which the defendants have realized from the property, above the amount that the law authorized it to be sold for. But it was insisted that the appraisers were not authorized to judge of the legality, or the existence of incumbrances. When brought to their knowledge, as these were, they were bound to notice them, for it was only by doing so that they could arrive at a fact which their oath required them to determine.

It was also insisted that the property was not subject to a levy, because having failed to bring two-thirds of its value under the prior executions, it was exempt from sale under any execution for twelve months. The law declared that when the property levied on failed to sell for two-thirds of its value, no other writ of execution, or other process for the sale of the property should issue, until the expiration of twelve months. The fourth section then provided that after the expiration of twelve months from the time at which the execution was returnable, a venditioni exponas should issue under which the property should sell for whatever it would bring. It is thus too clear to admit of doubt, that nothing more was intended than that pending the levy, no other execution under the same judgment should issue for the sale of the property; not that it should not be liable to other creditors.

Another objection taken to the validity of the sale is, that the sheriff did not furnish the defendants with a copy of the ap-praisement as required by the third section of the act. The record does not show that any such notice was furnished the defendants, nor does it show that any such objection was raised as a ground for rejecting the evidence in the court below. This was a matter in pais, and if the objection had been taken at the proper time, it might have been obviated by proof that the requisite notice had been furnished the defendants. The presumption is, that a party waives objections to evidence if they are not taken at the time it is introduced. Phillips v. Lane, 4 How. 122; Jackson v. Jackson 5 Cowen, 173. The objection in this instance was general; we have nothing before us that will authorize us to say that the failure to prove notice of the appraisement had any influence in the decision of the court. It is manifest on the contrary that it had not. The failure to notify the defendants could not have rendered the judgment, the execution and the levy incompetent, because such notice succeeds the levy; it is only to be given after the levy is made and the property appraised. A failure to give the notice did not vitiate that which had preceded it. At most it could avoid nothing .but the sale. The plaintiff probably commenced his proof with the judgment, then the execution and levy. These were ruled out, but this could not have been because the defendants were not notified of the appraisement. They were doubtless insufficient to establish title of themselves, but that was not a question of admissibility. We give no opinion as to the validity of a sale without notice of the ap-praisement served on the defendants, believing as we do that such a question was not raised.

The only remaining point which we shall notice applies to the sheriff’s deed. The plaintiffs in execution gave written directions to the sheriff to make a deed to the purchaser, in which they stated that the amount of the bid had been arranged with them. This it is said was not a payment in money }as the statute requires. The object of the sale was that the debt might be satisfied. If the plaintiffs acknowledged satisfaction it was surely sufficient. The object of the sale was accomplished. It was an unqualified admission that the amount of the bid had been paid to the plaintiffs. It was sufficient, after the reversal of the judgment, to entitle the defendants to a restitution of the amount bid. The authority referred to by counsel does not sustain the argument on this point. It does not decide that it is necessary for a sheriff’s vendee to prove payment. The deed, and not the payment, is the evidence of title. We admit the doctrine decided in the case referred to, (4 Wheat. 77,) that a sale made under a naked power derived from a statute, uncoupled with an interest, will be void, if the statute is not strictly pursued; and if the validity of a deed made under such sale, depends upon a matter in pais, the party claiming under it, is bound to prove performance of the act. That case arose out of a tax-collector’s sale; this under a sheriff’s sale. The one derives all his power from a statute ; the other derives his power from a judgment. Sales by a sheriff are judicial sales, whereas a tax-collector’s sale is a statutory sale.

Thinking that the appraisement law was substantially observed on the several points which have been properly presented for our determination, we say nothing as to the constitutionality of the law. For the same reason we give no opinion as to the effect of a failure to follow strictly the requisites of a statute on a sale made by a sheriff.

The judgment must be reversed and the cause remanded.  