
    David McComb vs. John Doe, ex dem. Henry T. Ellett.
    The question is now settled, that as the forfeiture of a forthcoming bond is a satisfaction of the original judgment, the lien of that judgment is also extinguished, and a new lien commences with the forfeiture of the bond, on new parties.
    An execution issued on the original judgment, after a forthcoming bond has been given and forfeited, is a nullity.
    A forthcoming bond cannot be quashed after the return term ; and if it be so quashed, the judgment quashing it is itself a nullity; an execution, therefore, issued under such circumstances, on the original judgment, is void, and a sale under it would pass no title, especially in favor of one having notice.
    A judgment at a subsequent term, which vacates a previous judgment, is void.; the statutory judgment, therefore, entered on a forfeited forthcoming bond, even though the bond be void, cannot be vacated by a judgment rendered at a subsequent term.
    A void judgment may be disregarded, even collaterally.
    In June, 1838, judgment was rendered against H. & M., on which an execution was issued, which was bonded, and the bond forfeited in November, 1838 ; on the forfeited bond sundry executions were issued until June, 1840, when the bond was quashed on the plaintiff’s motion, without notice, because it was not sealed. Other executions, however, were afterwards issued on the forfeited bond, and property sold under them ; in September, 1842, an execution issued on the original judgment, disregarding the bond, and levied on real estate, which was sold and purchased by the plaintiff’s attorney. Held, that the execution which issued in September, 1842, on the original judgment, was a nullity, and the sale under it, to the plaintiff’s attorney, passed no title.
    ERROR from the circuit court of Claiborne county; Hon. George Coalter, judge.
    This was an action of ejectment, brought by Henry T. Ellett in the Claiborne circuit court, against David McComb, for the recovery of lot No. 4, in square No. 1, in the suburb St. Mary, adjoining the town of Port Gibson. The pleadings are in the usual form.
    The case was tried at the May term, 1845. Upon the trial, the plaintiff in the court below offered the following evidence in support of his title :
    1. A deed from the executors of George Irish to A. W. Hodge and A. S. Merrifield, conveying to them the above described lot of ground and premises. The deed bears date March 25, 1837, was regularly acknowledged on the 19th of April, 1837, and recorded in the office of the clerk of the probate court of Claiborne county.
    2. An agreement of the counsel of the defendant McComb, and the plaintiff in the court below, by which it is mutually admitted that a good fee simple title to the property in controversy was vested in A. W. Hodge and A. S. Merrifield, by deed from Maury and Stamps, executors of George Irish, dated March 25, 1837; which agreement is specified to be intended to dispense with the necessity of any proof of title behind that of Hodge and Merrifield, which agreement is dated December 11, 1844.
    3. A transcript of the judgment and proceedings in the circuit court of Claiborne county, in the case of Joseph S. Totten against Hodge and Merrifield and others, showing that on the sixth day of June, A. D. 1838, Totten recovered judgment in said court against A. W. Hodge and A. S. Merrifield, as partners trading under the name and firm of Hodge & Merrifield, and against certain other persons, for the sum of $2067 97. That on the fifth day of August, A. D. 1838, a writ of fieri facias was issued upon said judgment, on which the sheriff of Claiborne county made the following return: — “ Levied on one lot of dry goods, as the property of the defendants, Hodge and Merrifield, Nov. 1, 1838 ” ; and the further return, “ Forthcoming bond taken with Parkinson & Sevier as security, and forfeited fourth Monday of November, 1838.” That the bond was signed by A. W. Hodge, A. S. Merrifield, R. Parkinson, and G. W. Sevier, but was unsealed by any and all of the signers. That a fi. fa. on the bond, an alias fi. fa. on the bond, and a pluries fi. fa. on the bond were successively issued, and were all returned by the sheriff of Claiborne county without action. That at the May term, A. D. 1840, of the Claiborne circuit court, a motion was made to quash the bond, which motion was sustained by the court for the reason “ that the bond is not sealed.” No notice of this motion was given to the opposite party. That on the tenth of August, A. D. 1840, an alias pluries ji. fa. on the bond was issued, which was returned without action by order of the plaintiff. Three other executions were subsequently issued on the bond, upon one of which fifty-six dollars was made and applied to the payment of costs, and a return of nulla bona made on that last issued. That on the twenty-seventh day of September, A. D. 1842, a pluries writ of fieri facias was issued upon the original judgment herein, which was levied on the 18th of October, 1842, on said “ lot No. 4, in square No. 1,” as the property of Hodge and Merrifield, which said “lot No. 4” was sold by the sheriff on the 21st November, 1842, and the following return of said sale made by him : “ The property described in the levy on the execution to which this is attached, was, after due and legal notice of the time and place of'sale having first been given, sold at the court house door in the town of Port Gibson, on the third Monday of November, 1842; and Henry T. Eliett, at said sale, being the highest and final bidder, became the purchaser at the price of $2000, which was applied as follows, to wit: $51 58 to the costs in this case, and $1235 35 to plaintiff’s money on the execution to which this is attached, and the balance, being $713 07, was applied to execution No. 794, R. PI. Osgood & Co. against Parkinson and Sevier, Hodge and Merrifield.” On the 25th January, 1843, said execution is receipted by Henry T. Eliett, the plaintiff’s attorney. To the reading of said last mentioned execution, with the returns thereon, in evidence to the jury, the defendant’s counsel objected, which objection the court overruled, and allowed the same to go to the jury, to which an exception was taken.
    4. The deed from the sheriff of Claiborne county to Henry T. Eliett, conveying to him, by virtue of his purchase under the Totten execution, and that of R. H. Osgood & Co., the said “ lot No. 4, in square No. 1,” which deed is dated November 21, 1842, acknowledged January 25, 1843, filed for record same day, and duly recorded in the office of the clerk of the probate court of Claiborne county. To the reading of this deed in evidence to the jury, the defendant’s counsel objected, but the objection was overruled by the court, and the deed allowed to be read, to which the defendant’s counsel also excepted.
    The defendant then read in evidence, a deed made by A. W. Hodge and wife, A. S. Merrifield and wife, and W. F. Goodin and wife, conveying said “lot No. 4” to the Bank of Port Gib-sou; which deed is dated April 23, 1840, filed for record May 11, 1840, and duly recorded in the proper office.
    He then read in evidence the depositions of C. W. Muncaster and others, to prove that defendant purchased said property from the Bank of Port Gibson ; that said bank purchased from J. O. Pierson & Co. on the 14th July, 1838, and on that day paid to Pierson & Co. the purchase-money; that at the time of the purchase, Pierson & Co. stated that they had purchased the property from Hodge and Merrifield, but had never received a deed for it; whereupon, it was agreed that Hodge and Merrifield should convey directly to the bank ; that the reason why the deed was not made at the time, was that the grantors and their wives were successively absent from the state; that the sale by Hodge and Merrifield to J. O. Pierson & Co. was made on the 3d day of July, 1838.
    He next read in evidence the title bond to J. O. Pierson & Co. from Hodge and Merrifield, signed and sealed with the partnership name of “ Hodge and Merrifield,” conditioned for making a deed to said “ lot No. 4,” on or before January 1, 1839, dated July 3, 1838, and assigned on the 14th July, 1838, by Pierson & Co. to the Bank of Port Gibson, which bond was never placed upon record.
    He next read in evidence, J. 0. Pierson & Co.’s receipt to the bank for the purchase-money of said property, dated July 14, 1838.
    He then introduced A. W. Hodge, who deposed, that he had no interest in the event of the suit, and offered to prove by him, that he was a member of the firm of Hodge and Merrifield; that said firm was constituted in 1836, and lasted until 1839, and was composed of Hodge, Merrifield, and W. F. Goodin; and that Goodin had always owned one-third interest in said “lot No. 4,” from the time of the purchase from Irish’s executors to the time of the conveyance to the Bank of Port Gibson, which evidence was ruled out by the court; to which defendant excepted.
    He next read in evidence, the deed to said lot from the Bank of Port Gibson to him, dated January 15, 1842, and duly acknowledged and recorded.
    Lastly, the plaintiff admitted in,evidence, that defendant resided on lot No. 4, at the time it was levied on and sold by the sheriff, and that he had improved it, and held it under the conveyance from the Bank of Port Gibson.
    The defendant then asked the court to give the following instructions to the jury:
    1. That the giving and forfeiture of the forthcoming bond, in the case of Totten against Hodge and Merrifield et al., was in satisfaction of the original judgment, and raised and extinguished its lien.
    2. That the lien of the Totten judgment, under which the lot was sold, commenced from the forfeiture of the bond in November, 1838 ; and that if the jury believe, from the evidence, that the defendant’s title accrued prior thereto, that then it was paramount to plaintiff’s title, and'that they must find for defendant.
    3. That the quashing the forthcoming bond in the Totten case, on motion, after the return term, was a nullity, and could not authorize execution on the original judgment, or restore the lien.
    4. That the title of defendant is good as a legal title, by relation back to the time of the purchase in July, 1838, by Pierson & Go. from Hodge and Merrifield.
    5. That from and after the sale by Hodge arid Merrifield, in July, 1838, until a deed was executed, they held said lot in trust for the grantees, and as trust property it could not be sold as their property.
    6. That the execution on the original judgment of Totten, after said judgment had been bonded, and bond forfeited, was a nullity, and conveyed no title to plaintiff by virtue of said sale, notwithstanding the bond had been quashed on motion, in June, 1840.
    7. That if the jury believe that defendant was in the adverse possession of the lot at the time of the levy and sale, by virtue of the title aforesaid and residence on the lot, that then said lot could not be legally sold without making said McComb a party to said judgment, by sci. fa. or otherwise, and that said sale could not affect the title of said McComb.
    8. That a sale by the sheriff is a sale by the party himself, and is on the same principle.
    All of said instructions except the eighth, were refused by the court. In overruling the first, second, third and sixth, the court charged the jury, that the paper purporting to be a forthcoming bond, was absolutely void, because it was not sealed. In overruling the fourth and fifth instructions, the court charged the jury that they were irrelevant and immaterial, as the lien of the judgment of Totten was older than the date of the agreement for the purchase by Pierson & Co. from Hodge and Merrifield.
    At the request of the plaintiff, the court charged the jury, that the lien of the Totten judgment commenced from the date of the judgment on the 6th June, 1838, and that all the interest of Hodge and Merrifield, in the property in controversy then became liable to be sold under said judgment; that Pierson & Co., the Bank of Port Gibson, and McComb, all purchased subject to the lien of said judgment, and that Ellett, the purchaser at the sheriff’s sale, acquired all the interest which Hodge and Merrifield had at the date of the judgment, 6th June, 1838.
    To all which defendant’s counsel excepted.
    A verdict and judgment were rendered in favor of the plaintiff, and the defendant removed the case to this court by writ of error.
    
      Thrasher and Sillers, for plaintiff in error.
    The first controlling principle in the action of ejectment is, that the plaintiff must be clothed with the legal title. Adams on Eject. 32. And that he must recover upon the strength of his own title, and not upon the weakness of his adversary’s, for whom possession alone is a good title. 2 Bibb, 130. It follows, that if the plaintiff purchased the lot in controversy on an execution upon a paid judgment, that he acquired no title, and that the court erred in permitting such title to be read in evidence to the jury. An execution upon a paid judgment is void, not merely voidable. A purchaser under such an execution can acquire no title. 4 Wend. R. 474; Swan v. Saddlemire, 8 Wend. 676, 681, and authorities there cited; 5 Wend. 240; 6 Ibid. 367. There can be no doubt, but that the giving and forfeiture of the forthcoming bond to November term, 1838, was a complete satisfaction of the original judgment, and raised the lien. Stuart v. Fuqua, Walk. R. 251; Ibid. 175; 1 How. R. 64; 3 Ibid. 420; 5 Ibid. 236; 6 Ibid. 513; 2 S. & M. 457.
    The original judgment being thus paid, satisfied and extinguished, was not revived by the order of the court quashing the forthcoming bond, after the return term, which' order was itself a nullity, for want of jurisdiction in the court. 1 S. & M. 347, 386; 2 Ibid. 539. An order of the court, quashing a forthcoming bond after the return term, is itself void, whether the bond be void or only voidable. Clow v. Tharpe, 3 S. & M. 64. This latter authority is a decision against the position of the defendant in error, to wit:
    That the bond was void for want of a seal. Even admitting that the bond was void for want of a seal, still the defendant in error is met by an impassable barrier in attempting to derive title from the sale under the execution. If the bond was void for want of a seal, then the taking of the bond did not affect the rights of the parties. 1 S. & M. 350. A void act has no more effect than if never done. 18 Johns. R. 528. Hence, the taking of the bond, if void, did not release nor affect the levy of the execution on the lot of dry goods, which, if the bond be void, is to be considered as a subsisting levy, undisposed of, and amounts to a complete satisfaction of the execution. Titus v. Bullen., 6 Wend. 562; 4 Mass. R. 403; 2 Lord Raym. 1072; 12 Johns. 208; 4 Cowen, 417 ; 7 Ibid. 21.
    
      The whole defence, however, upon the part of the defendant in error, is placed upon the ground that the bond was void for want of a seal, therefore that the court hád a right to quash it. But, say the court, in the case of Field v. Morse, 1 S. & M. 349, “If, at a subsequent term, the court undertakes to quash the bond, it attempts something more, to set aside or quash a judgment.” It is recited in the body of the bond, that the same is sealed. The omission of the seal was evidently a mistake. Such a bond at most was only voidable, and not void, and was cured by forfeiture and judgment. 1 Jacobs, 354. In 2 Lilly’s Abridg. 807, and Bacon’s Abridg. title Void and Voidable, we have the true distinction between void and voidable acts. See 18 Johns. 528. The omission of a seal to a bond by mistake, when required by statute, is frequently remedied by bill in chancery. 7 Conn. R. 543; 5 John. Ch. R. 224 ; 5 Const. R. 468.
    Independent, however, of the former adjudications of this court, neither the plaintiff who accepted, nor the defendant who executed the bond, can dispute it upon the well settled doctrine of estoppel. 2 Hill. Abridg. 400 ; 14 Pick. 467. A void deed or bond is good as an estoppel. 2 Hill. Abridg. 411; 3 Ohio, 116 ; 9 Johns. 60. In 7 Mass. R. 21, it was decided, that covenants in the joint deed of husband and wife, though void as to the wife, were nevertheless good against her by way of estoppel, and the general principle is fully recognized in 4 How. 23; 1 J. J. Marshall, 380; 2 Ibid. 280; 3 Ibid. 303; 7 Ibid. 113; 10 Peters, 265 ; 8 Pick. 386 ; 1 Litt. 418; 2 Ibid. 211; 3 Ohio, 116. In the case at bar, the plaintiff had accepted the bond at the return term, and caused numerous executions to issue upon the judgment on the forfeited bond, and collected on said executions on bond the sum of fifty-six dollars, by levy and sale of real estate. If the plaintiff, after accepting the bond at the return term, and collecting on it fifty-six dollars of his debt, is not estopped from disputing it, then it is hard to conceive a case in which the doctrine of estoppel will apply.
    The case of Carleton v. Osgood, decided by this court in 6 How. 285, has no analogy, and no application to this case.
    The title of McComb is perfect by relation back to the 3d of July, 1S38. A deed executed in pursuance of a previous contract for the sale of land, is good by relation back to the time of making the contract. 1 Johns. Cases, 18; 2 Yes. R. 78; Ohio Cond. R. 122. After the sale of the lot in July, 1838, payment of the purchase-money and taking possession, the vendors, Hodge and Merrifield, held the legal title in trust for the bank until the conveyance was fully executed ; and as trust property, it was not liable to the judgment, or judgment liens rendered against Hodge and Merrifield after the 3d of July, 1838. Thus land which has been sold, but not conveyed, is not liable to a subsequent judgment against the vendor. Ohio Cond. R. 122 ; 4 J. J. Marshall, 293; 7 Ibid. 404; Litt. Select Cases, 358; 3 Stu. R. 383; 3 Dana, 526; 4 Ibid. 258; 4 Litt. 168; 9 Johns. 663; 6 Randolph, 618.
    It is true that the original judgment against Hodge and Mer-rifield, under which the lot was sold, was rendered prior in point of time to the purchase, to wit, in May, 1838, but this judgment was satisfied and extinguished by the giving and forfeiture of the forthcoming bond to November term, 1838, upon which a new judgment, by operation of law, was rendered against the same and different parties, and execution could no longer issue on the old judgment, which was satisfied by the bond ; leaving the sale of the lot prior in point of time to the lien of the new judgment on bond. Consequently the purchaser will be protected in his title, according to the principle settled in the case of Cottiugsioorth v. Horn, 4 Stew. & Port. R. 249, and in the case of Broion v. Clark, 4 U. S. Court R. 14.
    
      John, B. Goleman, for defendant in error.
    Nearly all the points made in this cause depend upon the answer given to a single question. Was the paper returned by the sheriff to November term, 1838, with the execution of Totten against Hodge and Merrifield and another a valid forthcoming bond, or was it absolutely void? If valid, then it was improperly quashed, on motion, at May term, 1840 and is still in force. If void, then it was a nullity, both before and after the motion to quash, and even if the motion to quash were void, still the bond itself is void, and never constituted any obstacle to the plaintiff’s suing out execution on his original judgment.
    It appears that the bond was not sealed by any of the parties, and for this reason, we insist, it was void.
    The sheriff is required to take a bond, in a penalty, with condition, &c. How. & Hutch. 653, sec. 73.
    The return of the sheriff of the taking and forfeiture of a bond, is not conclusive. Williams v. Crutcher, 5 How. 71.
    An obligation, or bond, is a deed, whereby the obligor binds himself, &c. 2 Black. Com. 340; 2 Co. Lit. 567. It must be sealed. 1 Saund. R. 290, note 1; 1 How. 154; 1 Jac. Law Die. 350-354.
    A void bond may be treated as a nullity. And this, too, where it appears to be good on its face, and is shown to be invalid by extrinsic parol proof. Carleton et al. v. Osgood et al. 6 How. 29.5.
    A judgment or forthcoming bond, if the bond is void, may be quashed at any time, on motion. Buckingham v. Bailey et al. 4 S. & M. 548 ; Bell v. Tomligbée Railroad Company, lb. 573.
    But it is said that executions were issued on this paper, as a bond, and the plaintiff in the execution is therefore estopped from denying its validity. To this we answer,
    1. That the issuing of the executions was the mere act of the clerk. It appears that three executions were issued on it before it was quashed, and one afterwards. All of them were returned without any action, and one, at least, appears to have been so returned by order of the plaintiff’s attorney. There is no action of the plaintiff on which to found an estoppel.
    2. A void deed is incapable of confirmation, even by the parties that made it. Much less can it be done by the party to whom it is made.
    3. An estoppel must be mutual, and binding on both parties. It cannot be pretended that the obligors, sureties and all, are estopped by the act of the obligee. 1 Tomlin’s L. D. 674; Matlock v. - (decided January term, 1845); Lansing v. Montgomery, 2 Johns. 382; Co. Litt. 352, a.
    
      4. If the bond was void, the executions issuing on it were void. Can a nullify be made good by another nullity 1
    
    5. In Nelson Carleton & tío. v. R. Osgood & Co. 6 How. 295, the bond was good on its face, but was held void for matter extrinsic. There the plaintiffs in error had taken but executions on the bond, and it was argued that they were thereby estopped from disputing its validity, but the court passed over the point without any notice.
    The fourth and fifth instructions, asked by the defendant below, and refused, are based on the proof in the cause, that Hodge and Merrifield, on the 3d July, 1838, sold the premises to J. 0. Pierson & Co., and gave them a bond to make title on or before January 1, 1839. That, on the 14th July, 1838, J. O. Pierson & Co. assigned the bond to the Bank of Port Gibson ; and that on the 23d April, 1840, Hodge, Merrifield, and Goodin, executed a conveyance of the property to the bank, and on the 15th February, 1842, the Bank of Port Gibson conveyed the premises to the defendant, McComb.
    On this state of facts, the defendant’s counsel asked the court to instruct the jury, “ that the title of defendant is good by relation as a legal title, back to the time of the purchase, in July, 1838, by J. O. Pierson & Co., from Hodge and Merrifield,” and also, “that from and after the sale, in July, 1838, by Hodge and Merrifield, until a deed was executed, Hodge and Merrifield held said lot in trust for the vendees, until the conveyance, and as trust property it could not be sold as the property of Hodge and Merrifield.”
    In overruling these instructions, the court told the jury that they were “irrelevant and immaterial, as the lien of the judgment of Totten was older than the date of the agreement for the purchase by Pierson & Co. from Hodge and Merrifield.” It will be borne in mind, that the Totten judgment was obtained June 6, 1838, and the date of the agreement of Hodge and Merrifield, to sell to J. O. Pierson & Co. is July 3, 1838.
    No better reason can be assigned for refusing the instructions, than the one given by the court below; but in addition to that, it may be safely assumed that they are not law. The title bond was never recorded. No notice of the sale to the plaintiff in execution, or the purchaser, is shown; and no change of possession of the lot is alleged, until after the purchase by McComb, in 1842. A deed was made to the bank in 1840, which would operate as notice from that time. Then, even if the lien of the Totten judgment took effect from the time of the pretended forfeiture of the forthcoming bond, in November, 1838, the property would still be bound by the judgment. Dixon et al. v. Lacoste, 1 S. & M. 70.
    The seventh instruction asked and refused, assumes the position that, McComb being in the adverse possession of the lot at the time of the levy, no sale could be made without making him a party, by scire facias, or otherwise. No authority exists to sustain such a position. Where either of the.parties has died, or where execution has not been taken out for a year and a day after judgment, and it thereby becomes necessary to revive the judgment by scire facias, it may become necessary to make the true tenants parties, but in no other case is it necessary. Every lawyer’s daily practice will show him that it is not required, to make every purchaser of land that is bound by a judgment, a party to the judgment, by scire facias, before the land can be levied on and sold.
    Another point relied on by the plaintiff in error is, that it appears from the record, that the first execution issued on the Totten judgment, was levied on “ a lot of dry goods,” and that, if the forthcoming bond taken was void, this levy remains, in force, and that no further proceedings can be had upon the judgment, until that levy is disposed of.
    A levy on sufficient property, it is true, is prima facie, a satisfaction of the execution, but it maybe rebutted by showing that the levy has been legally removed.” 4 S. & M. 133. “Satisfaction is predicated on the supposition that the defendant has been deprived of his property, which in this instance is clearly not the case.” Ib. 135.
    Our statute provides that it shall be the duty of the sheriff, serving an execution on slaves, or personal property, if the person whose property is levied on will give surety, &c., to suffer such property to remain in the possession, and at the risk of the debtor, until the time of sale. How. & Hutch. 653, sec. 73.
    In this case the sheriff took what he supposed to be a good bond. The property was left in possession, and at the risk of the defendants, to be delivered by them at the time and place of sale. They failed to deliver it, and the sheriff returned the bond forfeited. “ If it was improper for the sheriff to restore the property levied on (without a good bond,) it was an impropriety of which the plaintiff in execution alone had a right to complain.” “ The defendants to that execution could not insist that it was satisfied, and of course third persons cannot.”
    Indeed, the opinion of this court in Walker v. McDowell, 4S. & M. 133-135, fully settles this point.
   Mr. Chief Justice ShaRKEy

delivered the opinion of the court.

This was an action of ejectment, in which the lessor of the plaintiff, the defendant in error, derived title under a sale made by the sheriff. The judgment was against Hodge and Merri-field, rendered in June, 1838. The defendant derived title from-the same parties, who sold to one Pierson, in July, 1838. The’ fi. fa. which issued on the judgment against Hodge and Merri-field, was levied on a lot of merchandise, for which a forthcoming bond was given, and forfeited at November term, 1838. On this forfeited bond sundry executions were issued, until June term, 1840, when it was quashed on the plaintiff’s motion, without notice, because it was not sealed. Other executions were, however, afterwards issued on it, and property sold. A fi. fa. issued on this bond as late as February, 1842, which was returned nulla bona. In September, 1842, a fi. fa. issued on the original judgment, disregarding the bond, which was the-second that had issued in that way after the bond was quashed, and under this the lot in question was sold. The defendant objected to this last execution, and the sheriff’s deed, as evidence, on the ground that the judgment had been satisfied and extinguished, by giving the bond. The points raised in the defence are that, by giving the bond, the judgment lien was extinguished; that the judgment quashing the bond was void, because it was rendered long after the return term; and the sale, having been made under an execution on the oiginal judgment, which had been thus extinguished, conveyed no title.

The court, in its charges to the jury, sustained the validity of the original judgment lien, and the validity of the sale under it, to which the defendant excepted.

The question is now settled, that as the forfeiture of a forthcoming bond is a satisfaction of the original judgment, the lien of that judgment is also extinguished; a new lien commences with the forfeiture of the bond, on new parties. The former judgment is merged in the latter, just as a second judgment recovered in an action on the first, would merge it as a lien.

But if the forthcoming bond is legally quashed, the lien of the original judgment is thereby restored. The inquiry is, therefore, was this bond legally quashed, or was the judgment by which it was quashed, itself a nullity, and inoperative. We have repeatedly decided that such a bond cannot be quashed after the return term. It then becomes a judgment, and as a court cannot set aside its judgments after the term at which they are rendered, neither can it quash a forthcoming bond, which is a statutory judgment. The case of King v. Terry, 6 How. R. 513, decides expressly that an execution issued on the original judgment, after a forthcoming bond has been given and forfeited, is a nullity. The case of Bell v. The Tombigbee Railroad Company, 4 S. & M. 549, decides that a forthcoming bond cannot be quashed after the return term, and that the judgment by which it is so quashed is itself a nullity. It also decides that an execution issued on the original judgment, under such circumstances, has no judgment to rest on, and cannot be sustained. These decisions seem to settle this case. A sale under an execution which is a nullity can vest no title, especially in favor of one having notice, and the plaintiff in this action was the attorney who obtained the original judgment, and receipted for the purchase-money on the execution.

But it is said the bond in this case was void, and the court had power to quash it at any time. In the case of Buckingham v. Bailey, 4 S. & M. 538, it was said the court might quash a judgment on a void bond at any time, although it could not do so on a bond merely erroneous, after the return term; but this was said, presupposing notice to the opposite party. This remark was made on the authority of Hopkins v. Godbehire, 2 Yerg. 241, where it was said, that “unless the judgment of a court is void, it cannot be set aside at a subsequent term.” But is not a judgment at a subsequent term which vacates a previous judgment, also void? And can a void judgment be vacated by a void judgment. If both are void, they stand upon the .same ground. A void judgment may be disregarded, even collaterally, and that is the proper course; and that was done in the case of Carleton v. Osgood, 6 How. 285. But this bond was not disregarded; it was treated as a valid bond up to the time it was quashed, and even afterwards, for property was sold under it after that time. The plaintiff in execution received it as a bond, and the obligors do not now object to it. It was not a bond certainly, but we are not prepared to pronounce it, in this collateral way, inoperative for any purpose. An instrument which is not a bond for want of a seal, is valid as an unsealed instrument. Warren v. Lynch, 5 Johns. 239. This view of the subject disposes of the case, the charges of the court having been erroneous, so far as they sustained the lien of the original judgment. We need not say what would be the effect if any of the obligors should attempt to vacate this bond, nor need we decide whether this property was bound by the judgment on the bond, notwithstanding the sale to Pierson, as it was not sold under the bond.

Judgment reversed, and cause remanded.  