Sanderson, J., delivered the opinion of the Court:
The plaintiff claimed title founded upon a sale under an execution, to which neither he nor the defendant’s lessor was a party. In support of his claim he produced at the trial a judgment, execution and Sheriff’s deed. To this testimony the defendant demurred, upon three grounds : First—-That the execution was void, because it varied materially from the judgment; Second—That it was void, because it appeared upon its face to have been issued upon two separate judg[375] ments; Third—Because the return, endorsed upon the execution, did not show a sufficient levy.
In view of these objections, the Court below excluded the testimony, and the plaintiff was accordingly nonsuited. Whether this testimony ought to have been admitted, is the only question presented for our consideration.
First—The ground of the first objection was, that the execution called for 8695 more than the face of the judgment. Was it for that reason void, and therefore the sale also ? We think it was only voidable, and therefore tire sale valid.
It cannot be denied that to sustain a title founded uj>on a Sheriff’s sale, a judgment must be produced; an execution, which the Judge can affirm, was issued upon the judgment produced, and a deed which was given in pursuance of the execution and the sale under it. Unless it appear that the judgment, execution and deed are links of the' same chain, the title will fail. But a question of variance between them must not be confounded with the question of their validity. The two propositions are quite separate and distinct. The former is a question of identity only—the latter assumes or concedes the identity, and goes only to the validity of the suspected instrument. If the execution differs so materially from the judgment that the Judge cannot affirm that the former was issued upon the latter, his conclusion is, not that the execution is void, but that it was not issued upon the judgment which has been exhibited with it. The conditions upon which the two questions arise, are not only different, but the question of void, or voidable, does not arise until the question of variance has been considered.
That this execution was issued upon the judgment which was exhibited with it does not admit of a rational doubt. The recitals in the execution correspond with the judgment in every particular, except as to the amount; the Court, the date, the parties, the general character of the judgment, are all correctly stated in the execution; and it is not pretended that there is, or was, any other judgment of the same Court, of the same date, between the same parties and of the same general character upon which the execution could have been [376] issued. Such being the case, there is no rational ground for saying that the judgment and execution are not-parts of the same judicial proceedings; and we do not understand counsel as disputing this proposition, but as conceding it, and insisting only that the execution is void, because it calls for too much money.
That, as a general rule, an execution must follow the judgment, and conform to it, and that if it varies materially from it, it will be set aside, or quashed, or amended, as the case may be, upon the motion of the parties to it, who are prejudiced by the error, is undoubtedly true, as appears by the cases cited by counsel. But, that and nothing more being shown, we have made but little progress in the present case. The question is not as to what the Court would have done with this execution if the defendants in the judgment had moved to set it aside—to quash, or amend it, as they might have done. If such was the question, it could be readily answered. The Court would not have set it aside, but would have allowed it to be amended so as to conform to the judgment ; that is to say, it would have quashed it only as to the excess. (Stevenson v. Castle, 1 Chit. 349; King v. Harrison, 15 East. 615; Morrys v. Leake, 8 T. R. 416, note a.; McCollum v. Hubbert, 13 Ala. 282.) But quite a different question is here presented—one which rests upon entirely different conditions, and involves altogether different principles: It is as to what ought to be done with such an execution when it comes before the Court collaterally as evidence of title in an action which is not even between the parties to the execution, but between entire strangers to it, and where it is not pretended that the execution was ever, at any time, even after the sale, set aside upon the application of the parties, who alone were injured by the error.
We understand the settled rule to be that if the execution be merely erroneous—that is to say, voidable—a sale under it to a bona fide purchaser will be valid, although the execution be afterwards set aside; but if the execution be irregular—that is to say, void— a sale under it, even to a bona fide purchaser, will also be void. (Woodcock v. Bennet, 1 Cow. 711.) ) Said Lord Chancellor Hardwicke, in Jeanes v. Wilkins [377] (1 Ves. Sen. 195) : “To avoid the sale and title of the defendant”—purchaser—“it must be proved that the fi. fa. was void, and conveyed no authority to the Sheriff; for it might be irregular, and yet, if sufficient to indemnify the Sheriff, so that he might justify in an action of trespass, he might convey a good title, notwithstanding the writ might be afterward set aside.” Said Chief Justice Savage, in Jackson v. Cadwell (1 Cow. 644) : “It may be considered settled law that a bona fide purchaser at a Sheriff’s sale acquires a valid title as against the defendant in the execution, unless it is not only voidable but absolutely void. ” This is but an extension to cognate conditions of a rule which no one disputes—that a sale under an execution upon a judgment which is merely erroneous, and therefore only voidable, is valid if made to a bona fide purchaser while the judgment remains unreversed, though it be otherwise if the judgment be absolutely void. (Harris v. Reynolds, 14 Cal. 667; Johnson v. Lamping, 34 Id. 293.) The rule is founded upon considerations of public policy; and in Manning’s case (8 Coke, 97, a), the reason is given thus: “If the sale of the term should be avoided, the vendee would lose his term and his money, too, and thereupon great inconvenience would follow, that none would buy of the Sheriff goods or chattels in such cases, and so execution of judgments (which is the life of the law in such case) would not be done; ” or, if done, it might have been added, so done as to greatly prejudice both debtors and creditors. It may be said that this reason, so far as it includes the loss of both the term and his money to the purchaser, is without foundation in this State, by reason of the 237th Section of the code, which has provided certain remedies to prevent such_a loss; but if so, the answer is that it was not the object of that provision of the code to disturb the rule of the common law in relation to the validity of executions or judicial sales, but to guard against its mischievous consequences in certain cases, by affording a remedy which the common law does not. It does not deal at all with the question as to when an execution or a sale shall be deemed valid and when not, but leaves [378] it as it was before, and merely provides that when, for any of the reasons given by the common law, a sale shall be ' declared void, the purchaser shall not be left, as at common law, without a remedy. (Woodcock v. Bennet, 1 Cow. 741.)
In conclusion, upon this branch of the general topic, it is proper to add that, according to some of the cases, a party to a judgment, or writ, is not a bona fide purchaser within the meaning of this rule, the reason given being that he is chargeable with notice of all defects in the judgment, or execution, as the case may be. Whether this distinction be well or ill founded is not pertinent to the present inquiry; for the purchaser in this case was not a party to the execution, and is therefore entitled to the full benefit of the rule.
It may not be easy to lay down a general rule by which, in all cases, the validity of an execution can be measured, and its qualities, as void or voidable, readily and accurately ascertained. An execution not under seal; or issued from . a Court which has been abolished (Lee v. Newkirk, 18 Ill. 550); or out of a Court not of competent jurisdiction; or upon a void judgment; or upon a judgment against an executor or administrator (Probate Act, Sec. 140); or perhaps in any case where its issuing is prohibited by law or an order of the Court, as, for instance, when the judgment debtor has died (Probate Act, Sec. 141); or has appealed and given a stay bond—may all be examples of void executions, but we do not undertake to say they are; we merely refer to them by way of illustrating the difference between void and voidable executions. It has been said that if a state of facts exists at the time the execution is issued, in view of which it is unlawful to issue it, the execution is irregular, and therefore void. (Woodcocks. Bennet, 1 Cow. 739.) It is probable that the rule thus stated is too broad; and if it is not, it is quite certain that it is of little value as a guide, for in a certain sense every execution which has been issued when it ought not to have been has been unlawfully issued. Yet, by the cases, such executions are not always held to be void; as, for example, where they have been issued upon dormant judgments without leave. (The State v. Morgan, 7 Iredell, 387; Dawson v. Shepperd, 4 Dev. [379]*379497; Mariner v. Coon, 16 Wis. 465.) But, be that as it may, it is obvious, we think, that an execution which has been issued according to the established course of practice (Luddington v. Peck, 2 Conn. 702), and is not so erroneous that it connot be amended, is not and cannot be void. It has been said, and we think with truth, that whether an execution is. amendable is a test of whether it be void or only voidable. In Parmlee v. Hitchcock (12 Wend. 97), the Court said: ‘ ‘ Whether the Sheriff is bound to execute an erroneous writ delivered to him, depends upon the question whether it is absolutely void or only voidable ; and whether void or voidable, depends upon the fact whether it is amendable.”
But however difficult it may be to declare a general rule upon this subject, it is not difficult, by the light of cases, to determine whether an execution be void or voidable, in a given instance. We therefore drop the further consideration of the rule, and turn to such cases as we have been able to find bearing directly upon the facts of the present case, and we have first to say that we have found no cases where it has been held that an execution, faultless in all other respects,, is void because through the misapprehension or mistake of the clerk it has been made to authorize the levy of too much money, and from the fact that our search has been attended with this result, we are led to believe that if such cases exist at all they are rare, and are departures from principle.
We are unable to distinguish between the case of an alias execution, upon which the clerk has failed to endorse money collected upon an original execution, although it has been credited upon the judgment, and the case of an original execution which has by mistake been made to call for too much money. The result is the same, and is due to the same cause—the result being the collection of too much money, and the cause being the mistake of the clerk; yet it has been held that such an execution is not void, and that a sale under it, to a bona fide purchaser, is valid. The same is true of executions issued upon judgments which have been already collected upon previous executions, but not so returned by the officer, or not so entered of record. (Williams v. Gill & Co. 6 J. J. Marshall, 487; Luddington v. Peck, 2 Conn. 700; [380] Jackson v. Cadwéll, 1 Cow. 622; Doe v. Snyder, 3 How. Miss. 66.)
But it is unnecessary to rest our conclusion upon what may be said to be only analogous cases. The precise point has been up repeatedly, and it never has been held, so far as we are advised, that a mere excess renders an execution void, or in any manner affects a sale under it to a bona fide purchaser.
In Avery v. Bowman (40 N. H. 453), the judgment was for $39 14 debt and $15 98 costs. These sums were stated correctly in the recitals in the execution, but the clerk made a mistake in adding them together, and accordingly the directory, or mandatory, part of the execution called for one dollar too much; yet it was held that neither the writ nor the levy under it was void for that reason.
In Brace v. Shaw (16 B. Monroe, 82), there were two judgments: one for $1,437 33, with interest from date, and the other for $4,329 56, with interest from date. The execution upon the first called for $1,437 62, being twenty-nine cents too much; the other called for $4,327 56, being two dollars less than the judgment. Neither execution called for interest. A sale of land under them to a bona fide purchaser was declared to be valid, for the reason that the writs were not void, but voidable only.
In Jackson v. Walker (4 Wend. 462), the judgment was for $533 17, and the execution for $533 11, yet it was declared to be amendable, and, for that reason, only voidable.
In Jackson v. Page (4 Wend. 588), the execution called for fifty cents too much, yet the sale under it to a bona fide purchaser was held to be valid.
In Miles v. Knott (12 Gill. & John. 442), the judgment was for $235 83⅓, and the execution for $295 83⅓, being $60 too much, but it was held that the title of a bona fide purchaser under it was unaffected by the error. To the same effect is Parmlee v. Hitchcock, (12 Wend. 96); and in this connection we also refer to the following cases, where executions were allowed to be amended (some of them being cases where the error was as to the amount), and were held not to be void merely because they were erroneous : Stevenson v. Castle, (1 [381] Chit. 349); Jackson v. Pratt, (10 John. 381); King v. Harrison, (15 East. 615); Morrys v. Leake, (8 T. R. 416, note a); McCollum v. Hubbert, (13 Ala. 284); Morse v. Dewey, (3 N. H. 535); Smith v. Keene, (26 Maine, 420.)
We regard the foregoing cases as establishing beyond a rational doubt the proposition that an execution which is amendable is not void, and that an execution which merely calls for too much money is amendable. It is true, that the difference between the judgments and executions were not so great as in the present case, but no reference-was made in any of them to the maxim, de minimis non curat lex, nor has that maxim, for obvious reasons, any application to questions of this character—it goes only to the question whether the amount in dispute is too trifling to attract the eye of the Court, and in no respect illustrates or controls a question of void or voidable process. To allow the amount of the excess —as much or little—to affect such a question, is not only to invoke a principle wholly irrelevant to it, but to proclaim that, in relation to a most important matter, there is no settled rule—that, if there is any variance. at all, that circumstance does not establish the character of the execution as void or voidable, but its character must depend upon the varying notions of Judges as to what is or is not a trifle, which is to say that the validity of judicial process is not to depend upon established rules of law, but upon judicial discretion ; or, in other words, the purchaser is not to be told, in round terms which he can understand, that the execution is or is not void, and that he will or will not get a title if he buys, but that if he buys he must take the chances, and wait until his title comes, as it surely will, before the judicial eye for inspection, when he will be fully informed as to what, in his case, is a trifle or is not, and that accordingly he has or has not got a title. If it be the policy of the law to uphold judicial sales, we know of no way by which that policy can be more effectually defeated than by the adoption of such a rule of decision. We say adoption, because we are certain that no such rule yet exists. The cases to wdiich we have referred make no mention of such a rule—they all proceed upon the theory that, in respect to mere variances between the judg[382] ment and the execution, the latter is amendable, and is, therefore, not void, but voidable only.
That executions which are merely voidable cannot be attacked collaterally admits of no debate, where, as in this State, the common law controls the question. A collateral attack can no more be made upon an erroneous execution than upon an erroneous judgment. Like an erroneous judgment, an erroneous execution is valid until set aside upon a direct proceeding brought for that purpose; and, until set aside, all acts which have been done under it are also valid. In a collateral action, it cannot be brought in question, even by a party to it, much less, as in this case, by a stranger to it. Even directly it cannot be attacked by a stranger, for it does not lie in the mouth of A. to say by it B. has been made to pay too much money, and that therefore all proceedings under it are null and void. That is a question which concerns B. only, and if he is content A. cannot complain. Nor if B., who is bound to know of the variance between the judgment and the execution, does not interpose by motion for its correction, ought he to be allowed to question the title of a purchaser under it—it may be years afterward ? He has a remedy by motion to amend, or by action to recover the excess of the levy from the plaintiff in the execution, and the Clerk, also; besides, with full knowledge of all defects, he has allowed the Sheriff, acting as his agent in the matter, to sell, and the purchaser to buy, without opening his lips, and in all fairness and justice to the latter, he must keep them closed forever. (Blood v. Light, present term; Jackson v. Bartlett, 8 John, 361; Jackson v. Robbins, 16 Id. 537; Mariner v. Coon, 16 Wis. 465; Elliott v. Knott, 14 Md. 121.)
Second—The ground upon which the second objection to the execution rests is, that it included the costs of an appeal from the judgment to this Court. It was proper and regular that it should.
Third—The last objection rests upon the ground that the return endorsed upon the execution does not contain a report in detail of the acts of the officer in making the levy. It was not necessary that it should. If the return be defective for the reason suggested, or for any other reason, the purchaser [383] would not be affected by the defect. Whether the return be good or bad, sufficient or insufficient, is a matter of no moment to the purchaser, for his title depends upon it in no respect whatever.
Judgment reversed and a new trial granted.
Sprague, J-, expressed no opinion.