the title. Under the statute it must embrace certain specific facts; and if these are not embodied, the title has not the requisites prescribed by law, and can not operate, therefore, as a legal transfer of the property. But in most of the states the rule is well settled that a purchaser is not bound, nor is his purchase affected by the irregularities of the sheriff, committed in making the sale, where such irregularity has taken place without the concurrence or participation of the purchaser: Forman v. Hunt, 3 Dana, 621; Blight v. Tobin, 7 T. B. Mon. 622 [18 Am. Dec. 219]; Natchez v. Minor, 10 Smed. & M. 246; Ware v. Bradford, 2 Ala. 682; Boggs v. Chichester, 1 Green (N. J.), 212. But a clear distinction is recognized to exist between a sale without authority, and one where there is an authority not strictly pursued: in the former case, the sale is void; in the latter, the title will pass, and the party injured by the irregular acts of the officer will be left to his remedy against him, for the injury: Drane v. Gregory, 3 B. Mon. 619. In Williamson v. Farrow, 1 Bailey, 611 [21 Am. Dec. 492], it is said to be the general rule, as to purchasers at sheriffs' sales, that where the defect in the proceedings is such a one as may be cured by consent, acquiescence, or amendment, it does not affect the title. But where it is a defect of substance, as a want of authority from the court, or where the authority is absolutely void, it vitiates and destroys the sale, and title under it.

It will be remembered that the act concerning executions in this state, does not direct the manner in which the return of the officer shall be made, or what facts shall be stated. It does not require the return to embrace all the proceedings of the sheriff; or that it shall be recorded in the registry of deeds; or that it shall constitute record evidence of the purchaser's title. He is subjected to a severe penalty, should he fail to make a return of the writ; or to make a levy, when in his power to do so; or to advertise, and offer for sale, any property levied on by him; and to shield himself from responsibility, he should comply strictly with the requisitions of the law: Acts of 1842, p. 71, sec. 23. But the statute nowhere declares the facts that shall be stated in his return; or that the sale shall be void, unless all the legal formalities have been pursued. Nor does the statute impose on the purchaser, the duty of proving, by the return in writing, or by parol evidence, that the officer has not deviated in his acts, from the mode prescribed by the statute, for the execution of his authority.

Having presented these observations, I will proceed to exam

ine the objections that have been urged to the title of the defendant, but not in the order in which they were taken at the trial, nor in which they are arranged in the argument of counsel. It is objected that the levy is not signed by the sheriff. This does not appear to have been taken, in the court below, and is, therefore, not now entitled to consideration. But it is sufficiently answered by the fact, that the levy constitutes but a portion of the return of the sheriff, which was duly signed by him, under his official signature.

A second ground of exception to the evidence of defendant, was, that there was no proof of advertisement of the sale, as required by law. It is incumbent upon the officer, that due notice should be given of the sale, by publication; and if he failed to do so, the plaintiff in execution has his remedy against him, by statute; and the defendant, if he suffer injury, can, under the law, claim redress.

But under statutes similar to our own, it has not been considered that the omission to perform this duty, or its defective execution, would invalidate the title of the purchaser; or, at all events, that it is incumbent on him to show affirmatively that the duty had been performed. In Turner v. McCrea, 1 Nott & M. 12, the court say that the act imposed it, as a duty, on the sheriff, to advertise all his sales in the public gazette; but his failing to do so could not invalidate the sale. If any damage resulted to the defendant from his failure to comply with the requisites of the act, he would be entitled to his action for the recovery of damages; but it was not incumbent on the purchaser to see that this duty had been performed by the sheriff. The title of the purchaser could not depend on such perishable testimony. If it would be necessary to have proved compliance with the requisites of the act, in any suit, it would be equally so in a suit which the purchaser may be compelled to bring fifty years after the sale. In Maddox v. Sullivan et al., 2 Rich. Eq. 4 [44 Am. Dec. 234], the property had not been advertised the length of time directed by the statute; nor at but one place instead of three, as provided by law; the court held, that these were but irregularities or omissions of the sheriff, in the discharge of the duties of his office; and that they do not vitiate a sale made by him, had been so long and fully settled, and on such well-defined principles, as to render all commentary upon them unnecessary. In Lawrence v. Speed, 2 Bibb, 401, it was held, that if a sheriff fails to advertise a sale of property under execution, according to law, he may subject himself to damages;

but it does not affect the right of a purchaser, unless, through fraud, the sheriff has omitted to advertise, and the purchaser had knowledge of the fraud. The statute of Kentucky had not declared the consequences of a failure to advertise; and the court held, on solid grounds of argument, that the rule, as above laid down, was dictated by sound policy, and was equally expedient, whether the interest of the owner or purchaser of the property was regarded. In Hayden v. Dunlap, 3 Id. 217, the same doctrine was held; but it was also ruled, that if the sheriff declares he has not advertised, and refuses to sell, and the purchaser indemnifies the sheriff, the sale will be regarded as fraudulent and be set aside. See also Kilby v. Haggin, 3 J. J. Marsh. 208.

In Natchez v. Minor, 10 Smed. & M. 246, the rules of law, as to the legal effect of irregularities in the proceedings of the officer, in making sales under execution, were elaborately discussed by the counsel and the court; and it was held, that the irregularities of the sheriff, in giving notice of the sale of real property under execution, will not vitiate the title of a bona fide purchaser at such sale; nor will a total omission by the sheriff, to give the notice, or his giving it in a mode entirely different from that prescribed by law, affect the title of the bona fide purchaser who has no knowledge of the misconduct of the sheriff. These cases are sufficient to show, that it may be regarded as a settled rule that a defective notice, or want of publication, of the sale of property under execution, will not vitiate the title of the purchaser. The fact of due notice having been given could but seldom be ascertained by those desirous of purchasing at public sale; and as sound policy requires that property, under a forced alienation, should bring a fair price, this will be best promoted by protecting the rights of the purchaser from being vitiated by the irregular acts of an officer, or from his being subjected to the peril of sustaining, at perhaps a distant period, their legality, by perishable parol evidence.

It is further objected, that there was no proof, by the defendant, that the sale under the execution was made at the time and place required by law. The defendant in execution appeared at the sale and appointed an appraiser; and it might be plausibly urged, that he consented to the sale, and that this cured the defect, if it had been even the fact that the sale was made at a time and place not directed by the statute. But however that may be, it is sufficient to say that the prima facie presumption is, that the officer discharged his duty, and that the sale

was made at the court-house of the county, and on the first Tuesday of the month, according to the requisitions of the law. The presumption is in favor of the title, and will support it unless rebutted by proof to the contrary.

Were the return required to embody all the facts, and made evidence of title, the objection that the time and place had not been established, would have been a fatal defect. But such is not the law; and where the return does not state facts to the contrary, the presumption would be, that the officer had not exceeded his authority. The return is, in this case, defective, in not stating the place, nor with sufficient certainty the time of the sale; but it states a fact which would have enabled the plaintiffs to prove with facility, that the sale did not take place on the first Tuesday of a month, if such had been the truth. The sheriff certifies that the sale took place on the third of June, 1845. If this be not the first Tuesday of that month, the fact should have been proved by the plaintiffs; and if established, it would have invalidated the title of the purchaser. This objection is of a different character from that of a want of notice of sale. The former is an objection to a want of power in the officer; the latter to an irregular exercise of legitimate authority. For the latter, the officer may be punished; but the title of the purchaser can not be affected. But where the time and place of a public sale are prescribed, the sheriff has no authority to sell at any other time or place; and should he do so, his acts are not merely irregular, but void, and can confer no title. This distinction can operate no hardship on purchasers, or destruction of the rights of innocent parties. A purchaser may not be apprised of the want of due notice of a sale, and would, in most cases, be ignorant whether it had been duly made or not; but he must be presumed to know the law, and consequently, whether a public sale is made at a time and place prescribed by the law or not: Williamson v. Farrow, 1 Bailey, 618 (21 Am. Dec. 492]; Enloe v. Miles, 12 Smed. & M. 147. But it was not proved that the sheriff had, in the particulars referred to, acted beyond the pale of his authority; and this objection to the judgment can not, therefore, be supported.

Several exceptions were taken to the admissibility of the deed of conveyance, in evidence. One is, that it purports to be founded upon an execution issued and tested March 18, 1845; whereas, the execution, in the record, is issued and tested May 5th. The statute directs the sheriff, after sale has been made and the terms complied with, to execute and deliver a conveyance

to the purchaser; but does not prescribe the facts which shall be stated in the deed, or that the authority under which the sheriff acted, shall be recited. The recital in the deed, is not made by the statute, nor is it on general principles of law, a substantial and efficient part of it; nor is it evidence of the facts recited in it, except between the immediate parties to it: Phil. on Ev. 356. In Harrison v. Maxwell, 2 Nott & M. 347 [10 Am. Dec. 611], the deed from the sheriff recited that the execution had issued from the court of one district, when, in fact, it had issued from the court of another. It was held, that this misrecital was not fatal to the title. The legal effect and advantages of recitals in deeds, were stated in the opinion of the court. The usage of incorporating in the sheriff's deed, a recital of the authority under which he sold, was commended as productive of great convenience, as well to the sheriff as to the purchaser. It would point the former to his authority to sell, and would facilitate the latter, in deriving his title; but it was held to be not indispensable. The recital of the power to sell and convey, did not give the right; nor was it evidence of the right. It is sufficient, if the right did exist, and the seller acted upon it.

The misrecital of a judgment in a sheriff's deed is not material, if it, in fact, appear that the sale was under a subsisting judgment and execution: a recital not being a material part of a deed: Jackson v. Streeter, 5 Cow. 529; Craig v. Vance, 1 Overt. 209; Sumner v. Moore, 2 McLean, 59; Cherry v. Woolard, 1 Ired. L. 438. An execution need not be recited in the sheriff's deed, and if recited inaccurately, it will not vitiate the deed: Jackson v. Jones, 9 Cow. 182; Jackson v. Pratt, 10 Johns. 381. A variance between the sheriff's deed and the levy indorsed on the execution, is not a valid objection to the admission of the execution, or deed, in evidence; nor is the mere recital of a wrong date of the execution any objection to the admission of the execution in evidence: Driver v. Spence, 1 Ala. 540.

These authorities establish the rule, that a recital in the deed, of the authority of the officer, being an immaterial part of the conveyance, no mistake or misrecital can impair its legal validity or effect. There must be a subsisting judgment and execution under which the sale is to be made; but as the recital of either is not material, so a mistake will not affect the title: Boggs v. Chichester, 13 N. J. L. 209.

Another objection to the deed is its vagueness in description of the premises. When the description of land in a deed is so