Smith, C. J.,
delivered the opinion of the court.
This was an action of ejectment, brought in the Circuit Court of Madison county, by the plaintiff in error, against the defendant, to recover the possession of the southwest quarter of section twenty-two, township eleven, range four east.
The plaintiff, on the trial, claimed title, through several intermediate conveyances, forming a connected chain, from the party to whom the land in dispute was originally sold by the United States.
The defendant relied on a deed, conveying the land to him in fee simple, executed by Charles C. Shackelford, who was the subvendee of James S. Ewing, who claimed under a deed bearing date the 4th of May, 1840, purporting to have been executed by the marshal for the Southern District of Mississippi, in virtue of a sale, made by him, under an execution, from the Circuit Court of the [459]*459United States for said district, in favor of one J. B. Diggs, against the parties to this suit, Henry and Edwin Hamblen. The deed recites the levy of the execution, on the land in controversy, the due advertisement of the sale, and the sale to Ewing on the day appointed.
The record of a judgment in the Circuit Court of the United States for the Southern District of Mississippi was read in evidence, by the defendant, from which it appeared that said Diggs had recovered a judgment therein, on the 20th of May, 1839, for $2763 55, against said Henry and Edwin Hamblen, on which judgment, an execution having issued, was levied on the property of the defendants; that these parties gave a forthcoming bond, with one Harold as surety, which was returned forfeited; and that an execution was issued, Dec. 20th, 1839, on the forfeited forthcoming bond, returnable to the May Term of said court, in 1840.
It appeared also by an indorsement upon the execution, of the date of the 4th of March, 1840, that the execution was levied upon personal property and several tracts of land, including the southwest quarter of section twenty. But it is not stated in the indorsement or return, that said execution was levied on the southwest quarter of section twenty-two, which is the subject-matter of this suit.
In the return, dated the 4th of May, 1840, and indorsed upon the execution, it is stated, that “ the land was bid off (by) C. C. Shackelford, the plaintiff’s attorney, for $1052.” The levy and the return of the sale, were made by different deputies of the marshal.
It was further proved by the defendant, that the southwest quarter of section twenty-two was advertised, by the marshal, for sale under the execution. The advertisement was inserted in the Madison Whig Advocate, and published for the period of thirty days before the day appointed for the sale. This advertisement described property not embraced in the levy of the 4th of March, 1840, as the same is indorsed upon the execution, and does not mention or describe the southwest quarter of section twenty, as property levied on and for sale at the appointed place and time.
From the facts thus stated, three conclusions may be drawn: 1. That the southwest quarter of section twenty-two was not levied [460]*460on by the deputy who made the return on the 4th of March, 1840, or if a levy was in point of fact made upon that quarter section, he failed to state it on the execution; 2. That a subsequent levy was made on the land in dispute, and no return made of it by the officer; or, 3. That the land was not levied on by either one of the deputies, but was advertised and sold, pursuant to the advertisement.
The questions which necessarily arise from these conclusions are, 1. Whether it is essential to the validity of a sale of land tinder execution, that the return made by the marshal or sheriff should show that a levy was made on the land sold; and 2. Whether an actual levy is necessary; and if essential to the validity of the sale, may it not be presumed ?
1. In all cases where a levy has been made, unless there has been a failure to sell before the return day of the execution, the levy and sale must of necessity precede the return. It is hence certain, that the return entered upon the execution does not confer the right to sell. If the levy and sale be valid when made, the title of the purchaser could not be defeated by the subsequent neglect of the marshal or sheriff to enter his return on the execution. This is clearly so, unless by statute it is expressly declared that such failure or neglect shall avoid the sale. It is unquestionably the duty of the marshal or sheriff to enter the levy upon the execution, and it is desirable that he should do so, as the means of preserving the evidence of it. But our statute has no provision which declares that the sale shall be void, unless the sheriff returns, on the execution, the property levied on and sold. The omission, therefore, to do so, would be merely one of those irregularities, which according to all of the authorities will not vitiate the sale made under it. This doctrine is well sustained by authority.
In North Carolina, the purchaser of land, sold under execution, is only bound to show a judgment, execution, and sheriff’s deed. As against the defendant in the execution, he is not required to show a levy by the sheriff. Den ex dem. McEntire v. Durham, 7 Iredell, 151.
In South Carolina the same principle is held to apply to both real and personal property. Gassaway v. Hall, 3 Hill’s S. C. Rep. 289. And the courts of Maryland, Kentucky, Illinois, and In[461]*461diana, recognize the same doctrine. 5 Harr. & John. 223; 6 Ib. 182; Sneed v. Reardon, 1 A. K. Marsh. 160 ; 3 B. Munroe, 346; Foe v. Heath, 7 Blackf. 157; Bybee v. Ashby, 2 Gilm. 166.
2. The authority of the marshal or sheriff to sell, is derived from the judgment, and execution issuing thereon. And it is conceded that there cannot be a sale legally made under execution, unless there has been a levy of the property sold. The title of “ the purchaser depends upon the judgment, the levy, and the sale and in all cases, in which titles derived' under execution-sales are upheld, the courts proceed on the presumption that there was a levy of the execution.
In order to constitute a valid levy on personal property, it is said, the sheriff must have it in his possession, or under his control, or perform some act with the intent of taking possession of it, which, if the judgment and execution under which he acts were void, would make him liable as a trespasser. But in regard to lands, what will amount to a levy is not so clearly understood. The levy does not transfer the property or pass the title to lands. And as the sheriff, in virtue of the execution, cannot rightfully enter and take possession of the lands, the levy cannot divest the possession of the defendant in the execution.
At most therefore he can only make known, by some overt act or declaration, his intention to levy or raise the money by a sale of the land. This might be done by giving notice to the defendant of such intention, or by entering on the execution a description of the land. In the latter case, the indorsement on the execution would be nothing more than evidence of the levy previously made. Or if in law, the entering the description on the execution would of itself constitute a levy; the act of advertising the land for sale would be equal evidence of the levy, and should, for manifest reasons, be held tantamount to an actual levy.
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Smith, C. J.,
delivered the opinion of the court.
This was an action of ejectment, brought in the Circuit Court of Madison county, by the plaintiff in error, against the defendant, to recover the possession of the southwest quarter of section twenty-two, township eleven, range four east.
The plaintiff, on the trial, claimed title, through several intermediate conveyances, forming a connected chain, from the party to whom the land in dispute was originally sold by the United States.
The defendant relied on a deed, conveying the land to him in fee simple, executed by Charles C. Shackelford, who was the subvendee of James S. Ewing, who claimed under a deed bearing date the 4th of May, 1840, purporting to have been executed by the marshal for the Southern District of Mississippi, in virtue of a sale, made by him, under an execution, from the Circuit Court of the [459]*459United States for said district, in favor of one J. B. Diggs, against the parties to this suit, Henry and Edwin Hamblen. The deed recites the levy of the execution, on the land in controversy, the due advertisement of the sale, and the sale to Ewing on the day appointed.
The record of a judgment in the Circuit Court of the United States for the Southern District of Mississippi was read in evidence, by the defendant, from which it appeared that said Diggs had recovered a judgment therein, on the 20th of May, 1839, for $2763 55, against said Henry and Edwin Hamblen, on which judgment, an execution having issued, was levied on the property of the defendants; that these parties gave a forthcoming bond, with one Harold as surety, which was returned forfeited; and that an execution was issued, Dec. 20th, 1839, on the forfeited forthcoming bond, returnable to the May Term of said court, in 1840.
It appeared also by an indorsement upon the execution, of the date of the 4th of March, 1840, that the execution was levied upon personal property and several tracts of land, including the southwest quarter of section twenty. But it is not stated in the indorsement or return, that said execution was levied on the southwest quarter of section twenty-two, which is the subject-matter of this suit.
In the return, dated the 4th of May, 1840, and indorsed upon the execution, it is stated, that “ the land was bid off (by) C. C. Shackelford, the plaintiff’s attorney, for $1052.” The levy and the return of the sale, were made by different deputies of the marshal.
It was further proved by the defendant, that the southwest quarter of section twenty-two was advertised, by the marshal, for sale under the execution. The advertisement was inserted in the Madison Whig Advocate, and published for the period of thirty days before the day appointed for the sale. This advertisement described property not embraced in the levy of the 4th of March, 1840, as the same is indorsed upon the execution, and does not mention or describe the southwest quarter of section twenty, as property levied on and for sale at the appointed place and time.
From the facts thus stated, three conclusions may be drawn: 1. That the southwest quarter of section twenty-two was not levied [460]*460on by the deputy who made the return on the 4th of March, 1840, or if a levy was in point of fact made upon that quarter section, he failed to state it on the execution; 2. That a subsequent levy was made on the land in dispute, and no return made of it by the officer; or, 3. That the land was not levied on by either one of the deputies, but was advertised and sold, pursuant to the advertisement.
The questions which necessarily arise from these conclusions are, 1. Whether it is essential to the validity of a sale of land tinder execution, that the return made by the marshal or sheriff should show that a levy was made on the land sold; and 2. Whether an actual levy is necessary; and if essential to the validity of the sale, may it not be presumed ?
1. In all cases where a levy has been made, unless there has been a failure to sell before the return day of the execution, the levy and sale must of necessity precede the return. It is hence certain, that the return entered upon the execution does not confer the right to sell. If the levy and sale be valid when made, the title of the purchaser could not be defeated by the subsequent neglect of the marshal or sheriff to enter his return on the execution. This is clearly so, unless by statute it is expressly declared that such failure or neglect shall avoid the sale. It is unquestionably the duty of the marshal or sheriff to enter the levy upon the execution, and it is desirable that he should do so, as the means of preserving the evidence of it. But our statute has no provision which declares that the sale shall be void, unless the sheriff returns, on the execution, the property levied on and sold. The omission, therefore, to do so, would be merely one of those irregularities, which according to all of the authorities will not vitiate the sale made under it. This doctrine is well sustained by authority.
In North Carolina, the purchaser of land, sold under execution, is only bound to show a judgment, execution, and sheriff’s deed. As against the defendant in the execution, he is not required to show a levy by the sheriff. Den ex dem. McEntire v. Durham, 7 Iredell, 151.
In South Carolina the same principle is held to apply to both real and personal property. Gassaway v. Hall, 3 Hill’s S. C. Rep. 289. And the courts of Maryland, Kentucky, Illinois, and In[461]*461diana, recognize the same doctrine. 5 Harr. & John. 223; 6 Ib. 182; Sneed v. Reardon, 1 A. K. Marsh. 160 ; 3 B. Munroe, 346; Foe v. Heath, 7 Blackf. 157; Bybee v. Ashby, 2 Gilm. 166.
2. The authority of the marshal or sheriff to sell, is derived from the judgment, and execution issuing thereon. And it is conceded that there cannot be a sale legally made under execution, unless there has been a levy of the property sold. The title of “ the purchaser depends upon the judgment, the levy, and the sale and in all cases, in which titles derived' under execution-sales are upheld, the courts proceed on the presumption that there was a levy of the execution.
In order to constitute a valid levy on personal property, it is said, the sheriff must have it in his possession, or under his control, or perform some act with the intent of taking possession of it, which, if the judgment and execution under which he acts were void, would make him liable as a trespasser. But in regard to lands, what will amount to a levy is not so clearly understood. The levy does not transfer the property or pass the title to lands. And as the sheriff, in virtue of the execution, cannot rightfully enter and take possession of the lands, the levy cannot divest the possession of the defendant in the execution.
At most therefore he can only make known, by some overt act or declaration, his intention to levy or raise the money by a sale of the land. This might be done by giving notice to the defendant of such intention, or by entering on the execution a description of the land. In the latter case, the indorsement on the execution would be nothing more than evidence of the levy previously made. Or if in law, the entering the description on the execution would of itself constitute a levy; the act of advertising the land for sale would be equal evidence of the levy, and should, for manifest reasons, be held tantamount to an actual levy. For if it be assumed, that the entering the description of the land on the execution, amounts to an actual levy, until it is made a part of the sheriff’s return, and until it is actually returned into the clerk’s office, it remains a mere matter in pais, an official act of the sheriff, like that of advertising the land, which the law authorized and required him to perform. And if any part of the object of a levy on land, be to give notice, either to the defendant in the execution or to the [462]*462public, that purpose would be more effectually subserved by an advertisement, in the mode prescribed by law, than by the officer’s writing a description of the land, upon the bach of the execution.
But it is not material whether the advertisement be held tantamount to an actual levy, or whether it be regarded as evidence of a levy previously made, as in all cases in which lands have been advertised and sold under a valid judgment and execution, and a deed made to the purchaser, a levy will be presumed. Ware v. Bradford, 2 Ala. Rep. 682; Work v. Hunter, 1 Cam. and Norwood’s Rep. 627; 3 A. K. Marshall's Rep. 619 ; and cases above cited.
The decisions upon this subject are based upon the policy of the law, to encourage purchasers at execution-sales, who would be deterred from buying, to the detriment both of the debtor and creditor, if sales made by an officer of the law, and appearing to have been conducted in conformity with its requirements, should be avoided on account of some irregularity which could not be known at the time; and also upon the general principle of reposing faith in the acts of ministerial officers. The principle above laid down, of course, would not apply, if the conduct of the purchaser be fraudulent.
It follows from what we have above said, that the sale under the execution, and the marshal’s deed to Ewing, were valid, and vested in him, whatever title and interest the plaintiff in error held in the land, as fully as if he himself had made the deed. The defendant’s was, therefore, the superior title : or to speak more appropriately, the plaintiff showed no title whatever.
Judgment affirmed.