the 28th of December, 1907. Whereas the execution was returnable on the 23d of December, 1907. A sale under an execution after the return day is void. Williams v.

Williams, 52 Miss. 785.

In the second place the sale was void because the purchaser, Lamar Hennington, was the justice of the peace who rendered the judgment and issued the execution thereon under which the sale was made.

It has been held that a justice of the peace cannot purchase at a sale under an execution based on a judgment rendered by him especially when the execution was issued by him.

"No person can become a purchaser at a judicial sale who has a duty to perform in reference thereto which is inconsistent with the character of purchaser.

Neither can the judge who ordered the sale become the purchaser, or be interested in the purchase." 24 Cyc. 29. See the following authorities: Livingston v. Cochran, 33 Ark. 294; Tracy v. Colby, 55 Cal. 67; Hoskinson v. Jaquess, Haar. (Mich.) 259.

It appears from the testimony of Lamar Hennington himself that the judgment under which the sale was made was never placed on the judgment roll and was therefore not a lien on the piano.

We thus see from the evidence that the appellee was in possession of the piano under a void sale. He had no right to it whatever and it does not avail him that under the testimony the bill of sale might have been signed in January instead of the October preceding.

I submit that the peremptory instruction asked for by the plaintiff ought to have been given, and that this case therefore should be reversed.

Lamar Hennington, for appellee.

Unless the record shows that appellant has proven that it had title to the piano when this replevin suit was filed, this case ought to be affirmed. And the appellant

has failed to show title in itself either at the time the suit was filed or afterwards.

By careful reading of the record it will be seen that the piano in question was the property of Mrs. J. S. Williams, the wife of one Mr. J. S. Williams, and that he, Mr. J. S. Williams, the husband, signed the bill of sale in his own name. He did not even sign the bill of sale in the name of his wife, the owner of the piano. The record shows also that the owner of the piano, Mrs. J. S. Williams, did not sign the bill of sale, was not present when it was signed, and did not authorize any one to sign same, so that the title to this piano has never been in E. E. Forbes Piano Company. Nowhere does it appear in the record that Mrs. J. S. Williams, the owner of the piano, signed or authorized the signing of the bill of sale; and we submit that the title could not pass by the execution of the bill of sale by Mr. J. S. Williams in this manner.

The appellee is not called upon in this case to show title in himself, but the burden is on appellant. It is not necessary in the consideration of this case to decide whether the execution sale was valid or not, because the case will have been decided before that point is reached.

It will be borne in mind that possession of the piano was not given to appellant, but was left exactly in its original position in the house of the owner, Mrs. J. S. Williams, until the sheriff carried it away under the writ of execution, and if the bill of sale did not convey title to appellant, this case aught to be affirmed.

Watkins & Watkins, on same side.

It is contended by appellant that the sale was void because Mr. L. Hennington, the appellee in this cause was the justice of the peace who rendered the judgment. We simply submit, if the court please, that this would not incapacitate Mr. Hennington from purchasing at the

sale. It is indisputably shown that this was a public sale at the court house door in the presence of a great many people, and Mr. Hennington came there, like any other bidder, and there were a number of bidders on the piano, and it was finally struck off to Mr. Hennington for the sum of a hundred dollars, for which amount he gave the sheriff his check.

We respectfully submit that as a proposition of law a justice of the peace is not debarred from purchasing at an execution sale for the mere reason that he rendered the judgment. The counsel for appellant cite in their brief some authorities showing that a judge cannot be a purchaser at his own sale; but there are cases where the judge who rendered the decree also decreed the sale. In other words, a judge directed the property to be sold by decree. In this case, the justices of the peace simply rendered a judgment by default upon proper process. After the expiration of five days, he issued an execution thereon, and then appeared at the sale and like any other person could have done, bid on the property. His judicial functions were at an end, and the record discloses the fact that the sale was absolutely fair beyond any question, and that the piano brought a good sound price.

The counsel for appellant states as a proposition of law that a judge who orders a sale cannot buy at the sale, and refers as his authority for the statement to the article on Judicial Sales, in the 29th volume of Cyc. All the cases cited by counsel, are, strictly speaking, judicial sales; that is to say, sales made under the decree of some court, and because of the fact that the judge who orders the specific sale would have to confirm the same, it is held that he is incapacitated to purchase at said sale. The distinction, however, lies in the difference between judicial and ministerial sales. In the 17th volume of Cyc., p. 1233, note 76, a distinction is observed, and it is held therein that the sale of property under

an execution is a ministerial sale and not a judicial sale. There are a number of cases cited supporting the proposition, and we content ourselves with reference to the same. No reported case which we can find holds that a justice of the peace is incapacitated to purchase at a sheriff's sale, because of the fact that he rendered the judgment and issued the execution. The difference being that a sheriff's sale under execution is performing purely ministerial duties. We, therefore, respectfully submit that it was perfectly competent, and in no way invalidated the sale, that Mr. Hennington, the purchaser and appellee in this cause was the justice of the peace.

We will go further, however, and state that even if the sale in question was absolutely void for the reasons contended by appellant's counsel, still the appellant is not entitled to recover.

It is admitted that a valid judgment was obtained and a valid execution levied thereon. We refer the court to section 3971 of the Code, which fixes a lien upon property by reason of the levy of an execution. It is only essential that an execution shall be levied; when it is levied then the execution lien takes effect. That being true, even if a void sale was made, still the appellant was not entitled to recover, since if the officer made a void sale, the vendee, who is the appellee, at the execution sale became subrogated to all the rights of the execution creditor, and is now entitled to a vendi exponas issue, in order to effect a valid sale of the property. (See sections 3990 of the Code.) The only effect of the invalidity of the sale, if any, was to leave the property levied on subject to levy, and subject to the further order of the court at any regular return day. The mere fact that a void sale is made does not discharge the property from the levy. The property remains theoretically in the custody of the officers, subject to the levy, and remains charged with the same lien, and liable for such other process as may be legally issued against it, and

the appellant having only acquired his rights in reference to the piano on January 17, 1908, after levy was made, is not entitled to recover. This being true, it is perfectly proper for the court below to submit to the jury the only question of disputed fact in the case, which was the date of the bill of sale under which the appellant claimed.

The action of replevin is a possessory action. The plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's. Nothing is involved in the replevin suit but the right of possession. If the levy of the execution was paramount, then the appellant was not entitled to the possession of the property. The court below and the attorneys who tried this case evidently had the conception of it that we have indicated, which accounts for the fact that the sole issue found in the instructions on both sides was submitted to the jury.

In conclusion, we will state that we rely for affirmance of this judgment upon the facts.

1st. That by virtue of the verdict of the jury, it is demonstrated that the appellant acquired no right with reference to the piano in question until January 17, 1908, at which time the piano had been levied upon and sold to the appellee under and by virtue of an execution, and that even if the sale to the appellee was invalid, and we claim it was valid, the property still stands charged with the execution lien.

2d. That appellant itself secured the submission of its case to the jury upon one solitary issue of fact, and it must now be held to that issue.

3d. The motion for a new trial presents nothing to be adjudicated by this court. It did not assign as error the refusal upon the part of the court to give it any instructions nor did it direct the attention of the court to any erroneous instructions given for the appellee. In fact, the motion for a new trial did not direct the