proofs in the cause, we have come to the conclusion that he has not. The second fieri facias was the effective writ, under which the venditioni exponas issued, by the command of which the sale was made. To that writ the sheriff made a return, that he had seized the following tracts, or parts of tracts of land, to wit: "one tract of land called Pasture Enlarged, containing two hundred acres; one tract of land called Osbourn's lot and part of Pleasant grove, containing fifty-two acres; part of Duvall's Pleasure, containing one hundred and fifty acres; part of Tukesbury, containing fifty acres; part of Tukesbury and Walker's Delight; and part of a tract of land called Friendship, containing one hundred and eighty acres." The return to the venditioni exponas states the sale of the following tracts, or parts of tracts of land; that is to say, "one tract of land called Pasture Enlarged, containing two hundred acres; one tract of land called Osbourn's lot and part of Pleasant grove, containing fifty acres; one tract of land called Duvall's Purchase, or part of Duvall's Purchase, containing one hundred and fifty acres; one tract of land called Tukesbury, and part of Tukesbury and Walker's Delight, containing one hundred and fifty acres; and one tract of land called Friendship, containing one hundred and eighty acres."

In the first deed of the sheriff, executed in 1827, the lands are described to be, one tract of land called Pasture Enlarged, containing two hundred acres; one tract of land called Osbourn's lot and part of Pleasant grove, containing fifty-two acres; one tract of land called Duvall's Pleasure or part of Duvall's Pleasure, containing one hundred and fifty acres; one tract of land called Tukesbury, and part of Tukesbury and Walker's Delight, containing one hundred and fifty acres, and a tract of land called Friendship, containing one hundred and eight acres. In the deed of 1835, executed by the sheriff, the lands conveyed are described to be, tracts of land called Pasture Enlarged, Osbourn's lot, and Pleasant grove, Duvall's Pleasure, Tukesbury, and Walker's Delight, and Friendship. The deed of the seventeenth of February, 1824, from Nathan Waters to his son, Nathan J. Waters, and Samuel Ratcliffe, which is impeached as fraudulent, conveys to them the following tracts or parts of tracts of land, to wit: "All that part of a tract or parcel of land, lying and being in the county and state aforesaid, called the Pleasant grove, whereon William Beck and Richard Toogood now live, containing two hundred and fifty-nine acres and three fourths of an acre, more or less; also, all that tract or parcel of land lying it

the county and state aforesaid, called Walker's Delight, containing one hundred acres of land, more or less; likewise all that part of a tract or parcel of land lying in the county aforesaid, called Friendship, containing one hundred and three acres, more or less; also, parts of three other tracts of land, called Osbourn's lot, Beck's addition, and the Parcel Enlarged, containing two hundred and seventy-six acres, more or less." The deed from Snowden to Nathan J. Waters, made in 1823, is for the tract of land called Friendship. These are the deeds which the complainant charges in his bill to be fraudulent, and which he seeks to set aside upon that ground. To entitle himself to impeach those deeds, or either of them, upon the ground of fraud, it is incumbent upon him to show that he became the purchaser at the sheriff's sale, and thereby acquired a valid title to the lands therein mentioned, or to some one tract or part of a tract conveyed by them to the grantees therein named. This we think upon a careful examination of the deeds, and the executions and returns made by the sheriff, he has failed to do.

It seems to be a principle well established, not only by the decisions of this state, but by those of our sister states, and by the laws of England, that, to enable the sheriff to sell, and vest in a purchaser at his sale a valid title, a seizure of the land sold is indispensable, and that without a valid seizure, no title can be acquired by a purchaser at his sale. Upon adverting to the return made to the second fieri facias it will be found, that the land called Friendship, is the only land embraced in the deeds alleged to be fraudulent, upon which the sheriff levied under that writ, and to sell which, the venditioni exponas issued, under which the sale was made. By that return it appears, that he levied upon only a part of that tract, without any description in the return of the part so levied upon; and that a sale made under such a seizure, without a specific description of the land sold, would be void, it is deemed unnecessary to cite authorities to prove. Had the sale therefore been made under the feri facias, it would have been clearly void, and the purchaser would have acquired no title. But no sale having been made under the fieri facias a venditioni exponas was issued, commanding him to sell the land seized under that writ, and under the venditioni exponas the sale in question was made. To the last-mentioned writ he returned, that he had sold not a part only of that tract stated to have been seized in his return to the fieri facias, but the whole of it; and the question is, whether such a return, made to the venditioni exponas, cures the defect of uncertainty in the seizure,

and vests a valid title in the purchaser to the whole of that tract. It is true this court have decided, in 1 Gill & J. 443,' that a purchaser at a sheriff's sale is entitled to the benefit of that officer's return, both to the fieri facias and venditioni exponas, and when the description of the subject levied on, according to the schedule returned under the first writ, is defective, it may be amended and rendered certain by the return of the sheriff's proceedings under the second writ; but in that case it will be found, that the return to the venditioni exponas describes the land sold by metes and bounds, thereby rendering certain the land which had been seized under the fieri facias, and states it to be the same land which had been seized under that writ; and this, it is believed, is the utmost extent to which this court has gone in giving validity and effect to such a defective seizure. But in this case, the sheriff states that he had sold the whole tract, and it not appearing by the return of the sale, what part of the entire tract sold, had been seized under the first writ, the whole sale was necessarily void for uncertainty; and this defect, it will be found, is not cured or remedied by any of the deeds executed by the sheriff to the purchaser, for they are obnoxious to the same objection as the return to the venditioni exponas.

In 2 Har. & G. 345,2 this court has said, a sheriff can not sell what has not been levied upon, and in 2 Bac. Abr., tit. Execution, letter N, it is said, the sheriff must actually seize the property on a fieri facias, before he can sell; and that a valid seizure is essential to the title of the purchaser at the sheriff's sale. See also 2 Bailey, 361,' where the principle is stated to be, that a levy made after the term to which an execution is returnable is void, and vests no title in the sheriff or his vendee. The same principle is stated as law in 2 Tidd's Pr. 1046, where it is said, the goods being once seized, and in custody of the law, they can not be seized again, by the same or another sheriff, and if they were seized under a second execution, and sold thereon, the bargain would be void. In support of this principle Tidd referred to a decision of Justice Holt, to be found in Shower, 174. The ground of the decision is, that the second seizure would be void, the goods being in the custody of the law, and being void, the sheriff would have no authority to sell, and of course the purchaser could acquire no title at his sale. These cases we think satisfactorily establish the doctrine laid down by this court, in 2 Har. & G. above referred to, that unless there 2. Berry v. Griffith; 8. C., 18 Am. Dec. 809

1. Clarke v. Belmear.

3. McElwee v. Sutton.

be a valid seizure, a purchaser at a sheriff's sale can acquire no title. It was not the intention of this court to impugn or call in question this principle, in the case of Estep and Hall's Lessee v. Weems, 6 Gill & J. 303. In that case it was only intended to decide, that it was not incumbent upon the purchaser to prove a legal seizure to entitle him to recover in an action of ejectment; he had a good title prima facie, without such proof on his part, to enable him to support his action; and if the language of the opinion in that case, is broad and general enough to carry the principle to a greater extent, it must be understood to be limited to the proof, which it was incumbent upon the purchaser to make in the first instance, to entitle him to recover. With this necessary qualification, the terms used ought to be understood. The tract of land called Friendship, being the only land embraced in the deeds impeached as fraudulent in this case, corresponding in name with those levied on by the sheriff, and the seizure having been only of a part of that tract, without defining the part so seized, and there being nothing in the sheriff's deeds or return of the sale made of that land, under the venditioni exponas, to cure such defective seizure, it follows as a necessary consequence, that the complainant acquired no title at that sale, to any land which was affected or prejudiced by such deeds, and that he had no standing in the court to impeach or call their validity in question. If we are correct on these views, it necessarily follows, that the decree below setting them aside as fraudulent and void, so far as his interest was affected by them, was erroneous, and that the same must be reversed.

Decree reversed with costs.

This seems to be the same case reported under the title of Duvall v. Waters, 1 Bland. Ch. 569; 18 Am. Dec. 350, although in the latter the bill is said to have been filed on February 26, 1827, while the bill in the present cause is stated as being filed on July 3, 1835. Whether the causes are the same or not, the conclusions reached are different. In the case first reported, the title of the complainant is deemed sufficient to entitle him to question the conveyances which he sought to avoid. In the present case, the complainant was adjudged to be without title, and the consideration of all the other questions was therefore treated as immaterial and unnecessary.

NECESSITY OF LEVY TO SUSTAIN A SALE. The principal case is one of the most direct and explicit of authorities, affirming that a levy is essential to the validity of an execution sale. For authority it purports to rely upon Berry v. Griffith, 18 Am. Dec. 309, where this point was not necessary to be deter mined. The subsequent cases in Maryland are doubtless in harmony with the principal case: Langley v. Jones, 33 Md. 179; Jarboe v. Hall, 37 Id. 351; Elliott v. Knott, 14 Id. 135. We doubt not that the Maryland decisions upon this subject accord with the decided preponderance of the authorities else. where; but we have never been able to assent to their soundness in principle.

Undoubtedly, the chief object of a levy is, by some well-defined act, to take property from the custody of the defendant, and place it in the custody of the law; or, in the case of real estate, to mark the inception, and give public notice of a lien, for the satisfaction of which the property is liable to be sold. Being once in the custody of the law, or otherwise brought within the operation of the execution, the property is consecrated to the satisfaction of the writ. It ceases to be an article of commerce. It can no longer be sold or pledged, except in subordination to the lien of the execution. The interests of strangers who might otherwise deal in the property upon their faith in the defendant's title, and in ignorance of the plaintiff's lien, require that, by some notorious act, the period terminating the defendant's right to sell and pledge shall be clearly indicated. The interest of the plaintiff also requires the existence and evidence of some act, from the date of which he can know that the property is in custody of the law, or is otherwise subject to his writ. But if all these objects happen to be otherwise accomplished, is there still a necessity for a levy? Is the levy something upon which the defendant has the right to insist as a prerequisite to the divesting of his title? If the property is present at the sale, and is sold and delivered to the purchaser, can his title be defeated by showing that there was in fact no levy?

The decisions from which we must judge how to answer these questions are by no means satisfactory. Some of them are dicta. Many others, in which a sale was questioned, pronounced against its validity for want of a levy, in connection with other grounds on which the judgment of the court could well be supported. Certainly the defendant in execution may waive a levy; and, upon so doing, can not controvert the validity of the sale on that ground: Trovillo v. Tilford, 31 Am. Dec. 484; Dorrance v. Commonwealth, 13 Pa. St. 164; Shamburger v. Kennedy, 1 Dev. 1. Where there is no showing to the contrary, a levy will be presumed in support of a constable's or sheriff's deed. Freeman on Executions, sec. 274.

In many cases courts will refuse to hear evidence offered for the purpose of defeating a sale by showing the want of a levy, because such evidence directly contradicts the return of the officer who executed the writ, or perhaps, when the return is ambiguous, parol evidence may be received to show the existence of a levy and the property included therein: Swan v. Parker, 27 Am. Dec. 522; Marshall's Lessee v. Greenfield, 29 Id. 559. But still this question remains: Is the sale invalid, if it is conceded by the parties, or established by unobjectionable evidence, that there was no levy? The cases in this series proceed upon the theory, that the levy controls and restricts the subsequent proceedings: Streaper v. Fisher, 18 Am. Dec. 604; Grubb v Guilford, 28 Id. 700; and that a void levy, as where the writ is levied by a deputy who is a party to the action, can not sustain a sale: Singletary v. Carter, 21 Id. 480. We have already shown that the Maryland decisions make a valid levy a condition precedent to a valid sale. This is also the rule in South Carolina: Singletary v. Carter, 21 Id. 480; in Pennsylvania, Buehler v. Rogers, 68 Pa. St. 9; in Arkansas, Hughes v. Wait, 26 Ark. 228; in Louisiana, Watson v. Bondurant, 2 Cent. L. J. 371; Kilbourne v. Frellsen, 22 La. Ann. 207; in Tennes see, Brown v. Dickson, 2 Humph. 393; Dobson v. Litton, 5 Coldw. 620: Lafferty v. Conn, 3 Sneed, 225; Brigance v. Erwin, 1 Swan. 379; and probably in Minnesota, Mississippi, and Missouri, Castner v. Symonds, 1 Minn. 427; Yeldell v. Stemmens, 15 Mo. 443; Newman v. Hook, 37 Id. 207; Hamblen v. Hamblen, 33 Miss. 455.

The leading case on the other side of this question is Blood v. Light, 38 Cal. 657, in which Sanderson, J., delivering the opinion of the court, said: “The seizure or the taking of the property into the custody of the officer, in the