
    Wm. Cain v. Thos. Maples.
    
      Tried before Mr. Justice Martin, at Sumter — Spring Term, 1833.
    Trespass to try titles. • The plaintiff was a purcha-at sheriff’s sale of the land in dispute, which had been sold as the property of the defendant. The sheriff’s levy endorsed on the execution, was in these i words “levied on a tract of land, whereon the deien-dant lives, pointed out by him.” Thé advertisement waS) (i0ne tract of land, whereon the defendant lives, as the property of Thos. Maples.” The land whereon the defendant lives, originally consisted of two distinct tracts, lying adjacent to each other: one had belonged to the defendant’s father, and in the partition of his estate, it was divided into two parcels, whkd1 was allotted to the defendant, and the other to his mother; he subsequently purchased his mother’s proportion: the other tract he purchased from one Broughton. The defendant had been living for many years; his dwelling is very near whathad originally been the dividing line of the two fo.aetgj arHj the whole has been cleared by him, and put under fence, without any regard to the line. The sheriff’s deed to the plaintiff includes both tracts. The land was sold by the sheriff'on Tuesday, It was proved that there was sufficient time on Monday to have sold that, and much more property; but the sheriff thought proper after giving notice to that effect on Monday, to continue over the sales until the next day.
    
      a sheriff’s sais day sufficient^ time to have soidon Monda}'; the sheriff must judge whkhauthoS the sale on Tuo-
    zed Ad sold oTiaSt whe/eon ilvW’dtoC1iive”d originally "con-wwe, fo? many Md" cultivated rid™0add coni limd 1 tL side included bot tracts.
    
      The defendant contended, 1. That the sale was void, because it was not made on the day prescribed by law, and no legal reason was given,why it was made on Tuesday; and 2dly. That the sheriff’s levy and advertisement did not include both tracts, and the sale was only of the single tract on which defendant lived.
    The presiding Judge charged the jury, that the sheriff was to judge of the necessity and expediency which would authorize him to make sales on Tuesday; that whether there was sufficient time to have sold on Monday, or not, was not the concern of the purchaser, whose title could not be affected by any irregularity of the sheriff, and therefore, this Sale was valid: that both of the original tracts, on one of which the defendant lived, and both of which he cultivated and regarded as one, were embraced in the levy and sale.
    The jury found for the plaintiff the whole of the land, and the defendant appealed, and moves for anew trial on the grounds taken below.
    M‘Cord for the motion.
    By the Act of 1791. 1. Faust 41, under which the sheriff sold, he is not au-thorised to sell on Tuesday, unless he was unable to conclude the sales on Monday. But the sheriff here came into Court, and said he could have sold ten times as much more property on Monday. The case of ner v. McRae, does not touch this case. That was a mere irregularity before the sale, not as here, affecting the right of the sheriff to sell. The Act of 1797 which requires sheriffs to advertise, is merely directory, while the Act of 1793, is prohibitory, and the rule is, that where there is a want of authority, the sale is void, but a mere defect in the proceedings which may be cured by consent or amendment, or any irregularity, shall not affect it. A tax collector is only authorised to sell land, on a deficiency of personal property. lu ^er&er v- Cleary and Stoney, the Court inquired into the validity of the sale, on the ground that there was personal property.
    
      &nraiB¡
    2Faust, 147.
    j bi**. Rep, «1 4 0rl“ch'
    6¿.Ti|dr'ev^-;
    
      1 The Court should have submitted the question to jury, whether both parcels constituted one tract laQd. Can the words “tract of land” embrace two tracts? The sheriff cannot sell more land than he levied on, and different tracts should be sold separate-fTr \f •
    
    Mayrant contra.
    As to the first ground, contended, that the sheriff had the right to judge of the necessity of continuing sales over to Tuesday, and if he excises that discretion improperly, it is a mere irregularity which is not to affect the purchaser; and that it would lead to great inconvenience, if purchasers were required to ascertain, whether the sheriff had time to sen on Monday. The sheriff is the agent of both parties. As to the second ground, he cited Bethea v. _ , - . ° Bethea.
    Preston, on the same side.
    Had the sheriff authority to sell? If he had, a mere irregularity will not invalidate the sale, if he had sold a day too soon, he had no authority, and the sale would have been void. But here, the sheriff is authorised to sell on Tuesday if the sales cannot be completed on Monday, and of necessity, the sheriff must judge when to continue the sales. It is no concern of the purchaser, whether the sheriff had time to have sold on Monday, or whether he sold any thing on that day. If he sells improperly on Tuesday, it is a mere irregularity for which he may be liable to the defendant, but it cannot affect the sale. It has been repeatedly held, that it is only necessary for a purchaser at sheriff’s sale to adduce a judgment and execution; will the Court now require him, not only to ascertain whether there is a judgment and execution, but also, whether the sheriff could have sold more on Monday. One sheriff can sell more than another. This sheriffmight make but ten sales a day, while another would .make forty, and must sheriffs’ sales depend on such circumstances? The amount of the argument is. that the sheriff did not sell fast enough on the first day, and sold too fast on the second.
    
      Ch~rIeston,18~Q.
    tT.Bep.70L
    i Badger & Be-' vere~u~'z 1tep.f~37 1
    4 Yatcs ~tep. lii; 2 Yates 516; I Thsziey, 61; 11 John. Rep. 365; 33 John. Rep. 97, 517; 1 Bsdger& Dev. 245.
    4 M. 246
    Ante. 644
    1 N. & M'C. 12; 1 N. & M'C. 408
    
      As to the second ground — The word “tract” has no very definite meaning, it is intended to designate a particular parcel of land, made up of different surveys, adjacent to each other. The sheriff’s deed is certain, and must be regarded as the evidence of the sheriff’s acts, and looked to for the purpose of explaining them.
    p«’»“.°r’.son1-
   Johnson, J.

1. The act of 1791 provides, “that no district sheriff shall sell any property, in any private or retired part of his district; but he shall sell the same, on the first Monday (and if the sales commenced on that day, cannot be concluded on the same, they may be finished on the day following at the same hours) in each month, between the hours of eleven and three, in Charleston district, and eleven and five in other districts, at such places in each and every district, as the Judges of the Court of common pleas shall appoint.” The evidence is very abundant, that there was no want of time to prevent the sale of the defendant’s land on Monday. The sheriff could have sold on Monday, conveniently enough, if he had thought proper to do so, and the question made in the first ground of the motion, is whether the sale is void, on account of having been made on Tuesday.

On this point we concur entirely with Mr. Justice Martin. The leading object of prescribing a time and place for sheriffs’ sales, was, to secure the greatest price for the property sold, by giving notice to those desirous of purchasing; and the possibility, that with the greatest possible industry the sheriff would not be able to make all his sales in one day, naturally suggested the idea of adding another, not that it might be physically impossible to make all the sales in one day, but that a thousand other causes might operate, to prevent, or render it inexpedient. And the knowledge that the sheriff may sell also on Tuesday, is equally calculated to secure the attendance of purchasers. To tie down the authority to sell according to the rigid rule contended for in support of the motion, might operate beneficially in a particular ease, but the chan» ces are exactly equal, whether it would not operate injuriously. On the other hand, there is not one cir» cumstance better calculated to secure a fair price at public sales, than the certainty which the purchaser feels in being quieted and protected in his purchase— No one would willingly pay a fair price for property,. With the knowledge that he might be dispossessed of it, on account of an irregularity arising out of the neglect or wilfulness of the sheriff, of which he might be wholly ignorant, and concerning which, he could have no means of informing himself; and the casp of Turner and M’JEtae, was decided on this principle. 2. There can of course be no technical mode of dcscribinga tract of land — all that is practicable or desirable, is that it should be known by the description. In Cruickshanks v. Frean. 3. M‘Cord 84, it is said that a description to a common intent is sufficient; and so, if it is described as it is generally known and understood. In Grimke v. Brandon, 1. Nott and M'Cord 364-5, the original grant included lands on both sides of a navigable river. In process of time, the proprietor sold to another, all that lay on one side of the river, and the plaintiff afterwards purchased both, and it was held that although they had been severed, in him they were identified, and constituted one tract, so that his pedispossessio in the South side, operated as an actual possession on the North side of the river; so that the whole might have been well described as one tract. And I recollect another case, in which, a devise of the homestead or “tract of land on which I live,” was held to carry another tract, separated from it by a considerable space. The homestead was swamp land, and principally cleared and cultivated; the other was wood land used with it for timber and fuel—Wilson ads. Robertson, Harpers Ch. Rep. 66.

These cases are an answer to the objection that the land is described in the levy and advertisement, as an entire tract on which the defendant lived. If it had been described as a tract of land, apart of which the defendant had inherited from his father, a part of ■Which he hail purchased of his mother, and a part from Broughton, which is according to the truth of the fact, it would have been unintelligible, except to the few who might probably know the" history of his title, But when described as the tract of land on which he lived, his residence, his cultivated fields, and the limits within which he exercised acts of ownership, would give a general view of the locality.

. There is another view of this question. It is unreasonable to expect, that the sheriff’can give a minute description of the land on which he levies; a general description is all that can be expected. He has no authority to make a survey, and if he had, he has nothing to point out the boundary. If it b¿ an evil calculated to injure the defendant in execution, the remedy is in his own hands. It is in his power to furnish the sheriff with a description, as minute as may be desirable. He may attend the sale, and give to the bidder every information that may be necessary to enable him to make a fair estimate of its value; and if he whose interest it is to make this known, neglects to do it, he must take the consequences of a sale under a general description, which is the most that can he expected of the sheriff.

Motion dismissed.

O’Neall & Harper Js. concurred.  