said to be in conformity to the general rule and followed in Hansell v. Erickson, 28 Id. 258, and was also followed in Bassett v. Child, 11 Id. 572. To recover on an entire contract, the plaintiff must show a full performance on his part, or a release by his employer, or some justifiable cause compelling him to leave: Thrift v. Payne, 71 Id. 409, citing principal case; and in Badgly v. Heald, 4 Gilm. 67, the same question arising, the court held the same, and said it was no longer an open question after the decision in the principal case.

BYBEE V. ASHBY.

[2 GILMAN, 151.]

SHERIFF'S DEED IS INADMISSIBLE IN EVIDENCE WITHOUT JUDGMENT AND EXECUTION, under which the sale was made, being also produced. Nor is the production of the judgment and execution dispensed with by a statute declaring such deed prima facie "evidence that the provisions of the law in relation to sales of lands upon execution were complied with." AMENDMENT OF EXECUTION SEVERAL YEARS AFTER SALE of land thereunder, upon an ex parte application, without notice to the defendant in execution, where it was originally directed to the sheriff of one county and executed by the sheriff of another, is erroneous.

SALE BY SHERIFF OF ONE COUNTY UNDER EXECUTION DIRECTED TO SHERIFF OF ANOTHER, of land lying in the former county, is unauthorized and confers no title, and the defect is not cured by an amendment of the execution made several years afterwards without notice to the defendant, especially where the plaintiff in the execution is the purchaser. EXECUTION REGULAR ON ITS FACE THOUGH THERE IS A VARIANCE between it and the judgment as to the amount recovered, protects the sheriff, and renders a sale made under it valid if it be made, in other respects, according to law; and such an execution, being voidable only, may be amended before or after the sale. But an execution not regular on its face, as where it is directed to the sheriff of one county and executed by the sheriff of another, affords no protection to the officer, and renders his acts done under it absolutely void.

EJECTMENT. Verdict and judgment for the defendant, and the plaintiff brought error. The facts are stated in the opinion. W. A. Minshall, for the plaintiff in error.

N. Bushnell, for the defendant in error.

By Court, YOUNG, J. This was an action of ejectment brought by the plaintiff, Bybee, against the defendant, Ashby, to the November term of the Fulton circuit court, A. D. 1843, to recover possession of the north-west quarter of section twelve (12), in township five (5) north, of range four (4) east of the fourth principal meridian, in Fulton county. To this action the defendant, Ashby, pleaded not guilty, the issue was tried by a jury, a verdict of not guilty returned, and a judgment rendered in

favor of the defendant for the costs. The evidence produced at the trial by the plaintiff, and the exceptions to the instruction of the court to the jury, are preserved in the bill of exceptions. The following are assigned as causes for the reversal of the judgment in this court, to wit: 1. The court erred in refusing to admit as evidence on the trial of the cause in the court below, the copy of the record from the Knox circuit court, and the sheriff's deed to the plaintiff, Bybee; 2. The sheriff's deed should have been admitted in evidence, whether the copy of the record produced was admissible or not; 3. The court erred in instructing the jury to find for the defendant; 4. The court ought to have instructed the jury to find for the plaintiff; 5. The verdict and judgment ought to have been for the plaintiff.

We think this whole case turns upon the question, whether the execution under which the sheriff of Fulton county levied upon, and sold and conveyed the land to Bybee, conferred upon him such authority, under the circumstances, as would make it a valid transaction, and sufficient in law to divest Ashby of the title which he had previously acquired by purchase from the United States. The plaintiff, Bybee, for the purpose of proving title to the premises in controversy, produced as evidence in the first instance, a certificate from the register of the land office at Quincy, showing that the defendant, Ashby, had previously to the levy and sale by the sheriff, purchased the land from the general government, and in the next place, a transcript of the record from the Knox circuit court, in connection with a deed from the sheriff of Fulton county, to establish the following facts, to wit: 1. That he had recovered a judgment against the defendant in the Knox circuit court; 2. That an execution or executions had issued thereon; 3. That said executions came to the hands of the sheriff of Fulton county; and, 4. That, by virtue of the alias fi. fa. last issued, the said sheriff levied upon the land in question as the property of Ashby, and sold and conveyed the same to him, Bybee, the judgment creditor in the execution.

It appears from the transcript that the plaintiff, Bybee, recovered against the defendant, Ashby, in an action of assumpsit, at the May term of the Knox circuit court, A. D. 1838, a judgment for the sum of thirty-one dollars and costs of suit; that on the thirtieth day of July, 1839, the clerk of the Knox circuit court issued a fieri facias execution thereon, directed to the sheriff of Fulton county, which was afterwards returned "nulla bona" by the sheriff of that county, by an indorsement dated September 1, 1839; that on the thirteenth day of February, A. D. 1840, an

alias fi. fa. execution was issued out of the clerk's office of the Knox circuit court upon the same judgment, directed to the sheriff of Knox county to execute; that this last-mentioned execution was also delivered to the sheriff of Fulton county, who levied the same on the land in controversy as the property of the defendant, Ashby, on the fourteenth day of April, 1840, and sold the same to the plaintiff, Bybee, on the sixth day of May, 1840, for the sum of sixty-nine dollars; that this last execution was returned to the clerk's office of the Knox circuit court, and filed on the twenty-eighth day of May, 1841; that at the June term of the Knox circuit court, 1843, the plaintiff, Bybee, submitted a motion to amend the alias writ of execution, under which the land was levied upon and sold, by striking out the word "Knox" in the direction of the writ, and substituting the word "Fulton," which motion was allowed, and the writ amended accordingly. This motion appears to have been ex parte, and made without any notice whatever to the defendant, Ashby.

The sheriff's deed to Bybee for the land is dated the eleventh day of September, 1841. The transcript of the record and sheriff's deed were, on motion of the defendant's attorney, excluded from the jury as evidence at the trial; exceptions were taken to the opinion of the court by the counsel for the plaintiff, and the defendant, Ashby, had judgment for his costs. If order to have made the deed to Bybee admissible as evidence, and available for the purpose of a recovery in the court below, two things were necessary to have been first shown by the plaintiff: ârst, a judgment in favor of the plaintiff, and, secondly, an execution to the sheriff of Fulton county, where the land was situsted, authorizing him to levy upon and sell the property of the defendant. The general doctrine in regard to the sale of lands ǝy a sheriff is, that his deed is inadmissible in evidence, unless the judgment and execution, under which sale is made, be produced to show the sheriff's authority to sell. The purchaser is bound to inquire into the power and means by which the property is subjected to the sale, and will acquire no right to the land, where the sheriff sells without legal authority: Voorhees v. United States Bank, 10 Pet. 458; 2 Yates, 86; Wilson v. Comine, 2 Johns. 280; Hinman v. Pope, 1 Gilm. 131.

It was contended by the attorney for the plaintiff in error, that by the statute of February 19, 1841, entitled "An act to amend an act concerning judgments and executions," approved January 17, 1825, which was in force after the first day of June,

AM. DEO. VOL. XLIII-4

1841, it was no longer necessary to produce the judgment and execution preliminary to the production of the deed in evidence at the trial, as the deed itself was made prima facie evidence of the existence of a judgment and execution, as well as of the regularity of the sale by the sheriff, until the contrary was shown by the defendant. The seventh section of the act referred to, provides, that "any deed so executed (by the sheriff) shall be evidence that the provisions of the law in relation to sales of lands upon execution were complied with, until the contrary be shown," etc. This relates to the presumption which is created by the act in favor of the regularity of the sale, after the execution shall have come to the hands of the sheriff, and does not dispense with the production of the judgment and execution, which is still necessary before the deed can be read in evidence. The record in this case sufficiently proves the existence of the judgment, but does not exhibit such an execution as would authorize the sheriff of Fulton county to sell the land of the defendant to Bybee. The alias fi. fa. under which the land was levied upon and sold, was directed to the sheriff of Knox county, and delivered to and executed by the sheriff of Fulton county, before any amendment of the writ was permitted by the court. The execution was not amended until the June term of the Knox circuit court, 1843, and then by an ex parte proceeding, without notice to the defendant, several years after the land had been sold by the sheriff, and the deed of conveyance made to the plaintiff. We think the court erred in permitting this amendment.

The leading case relied upon by the plaintiff's attorney on this point, is Walden v. Davison, 15 Wend. 575. In that case, the execution was directed to the sheriff of Cattaraugus county, but sent to the sheriff of Alleghany county. The sheriff's deputy in the last-mentioned county received the writ, acted upon it, received the money due from the defendant, and returned it satisfied, but afterwards neglected to pay over the money to the judgment creditor in the execution. Subsequently in an action of assumpsit against the sheriff for money had and received to the plaintiff's use, the sheriff pleaded the insufficiency of the execution to render him liable for the act of his deputy in collecting and withholding the money. Bronson, J., who delivered the opinion of the court, said, "that as the writ was intended for and delivered to the sheriff of Alleghany county, and he has executed the same without any objection on the part of the judgment debtor, he can not be allowed to withhold the money from the judgment creditor. The sheriff might have

declined to execute it on account of the irregularity; but as he has elected to treat it as a valid process, and has acted upon it under color of his office, it is too late now to make such an objection, and this was all that was necessary to be decided in that case." In this opinion we most readily concur. But we totally dissent from the dictum of the judge, arguendo, when he also says, “that the mistake in the direction of the execution did not render it absolutely void, and that the court would, at any time, have ordered an amendment, if that had been necessary for the protection of the officer." We do not decide that the execution in this case was void, but that being directed to the sheriff of Knox county, where the judgment was, it conferred no authority on the sheriff of Fulton county to sell the land of the defendant.

The proper distinction to be taken, as a general rule, between an execution that will protect a sheriff in the proper discharge of his duties under it, and one that will not, we hold to be this: that when the writ is regular upon its face, although there may in fact be a variance between the execution and judgment as to the true amount recovered by the latter, the sheriff will, nevertheless, be protected, and as it is his duty to execute it, when delivered to him, notwithstanding such repugnancy, for he is not bound to inquire whether there is a judgment exactly corresponding with it or not; and such a variance will not affect the validity of a sale made under it, if, in other respects, it be made in conformity with law. In such a case, the execution is voidable only, and may be amended as well after as before the sale: Bissell v. Kip, 5 Johns. 99, 100; Laroche v. Wasbrough, 2 T. R. 737; 2 Dunlap, 774; Jackson ex dem. Ten Eyck v. Walker, 4 Wend. 462, 465; Parmelee v. Hitchcock, 12 Id. 96, 97. But where the execution is not regular upon its face, as for instance, where it is issued without the proper seal of court attached, or where, as in this case, it is directed to the sheriff of one county and is delivered to the sheriff of another county, to be executed, such process will not justify the officer in executing it, and all his acts under it will be absolutely void, and he a trespasser, and the purchaser will acquire no right to the property purchased at the sale.

The courts all proceed upon the ground, that the process must be regular upon its face to justify the officer; in which case he is bound to execute it, and his acts will be valid, even though the process should afterwards be set aside for irregularity. But they at the same time declare, that although innocent purchasers