AS TO LANDS. purchaser; and this intent to deceive is evidenced by a volun- FIERI FACIAS tary conveyance, coupled with a subsequent agreement to sell again; and it is not merely the accomplishment of the deceit on the purchaser which constitutes the fraud, but the deceitful intention in the seller, manifested by his proceeding to the second sale. The seller in this instance is passive, and the lessee of the plaintiff is not a purchaser from him, but through the intervention of the law." 101 78 By the sale and conveyance, the defendant becomes quasi a tenant at will to the purchaser, and his possessionis not deemed adverse." The sheriff cannot legally put the party out of possession and the vendee in; but if the defendant will consent to go out, the sheriff may put the vendee in possession." So, if the premises are vacant, the vendee may enter;79 and he may enter, though some goods of the former proprietor are left on the premises, and though they may be occasionally occupied by his servants.80 If the purchaser cannot obtain peaceable possession, he must resort to an action of ejectment.81 In an action to obtain possession of the premises, the purchaser must at the trial produce not only the execution and sheriff's deed, but an exemplification of the judgment on which the execution issued.82 The defendant in the execution, or a person in possession under him, without title, or collusively, cannot set up an outstanding title in a third person, or otherwise dispute the title of the purchaser.84 8S A sheriff's deed is, per se, evidence of title in the grantee ; and parol evidence is inadmissible to contradict the recital, or to show that the land was sold under a different judgment and 101 15 Johns. Rep. 261. "Jackson d. Kane vs. Sternburgh, 1 Johns. Cas. 153. S. C. 1 Johns. Rep. 45. n. "Tidd. 1040. Bingh. on Executions, 248. 1 Johns. Rep. 45. n. 79 13 Johns. Rep. 340. M. Daugall vs. Sitcher, 1 VOL. II. Johns. Rep. 42. Sed vide 13 Johns. 81 See 2 Wend. Rep. 511. 82 12 Johns. Rep. 213. Holt's N. P. Rep. 589. 20 Johns. Rep. 338. 47 83 10 Johns. Rep. 223. AS TO LANDS. FIERI FACIAS execution from those recited in the deed; though such evidence may be admitted to show a fraud in the sale. The proper course for the debtor, or other judgment creditor, aggrieved by the proceedings under the execution, seems to be, by application to the court to set aside the sale and sheriff's deed.85 Sale when vacated. Remedies for failure of title and to en In a case where a plaintiff having inadvertently bid a sum less than the amount of his execution, apprehended that a junior judgment creditor might redeem, the sale was on his application set aside, and a re-sale ordered.86 But in another case where the plaintiff's attorney, contrary to the instructions of the plaintiff, bid less than the amount of the judgment, the court denied relief, on the ground that junior judgment creditors had acquired rights of which the court could not deprive them.87 Where an action was brought against a sheriff for the penalty allowed by statute, for misdescribing the land in the advertisement, the court, on motion of the sheriff, ordered the sale to be vacated, on paying the costs of the motion and of the action, the sheriff appearing to have acted in good faith and by mistake.89 The revised statutes contain the following provisions affording remedies for failure of title to real estate sold by execuforce contri- tion, and to enforce contribution between several owners of lands subject to the same judgment: bution. "If the purchaser of any real estate, sold by virtue of an execution, his heirs or assigns, shall be evicted from the possession of such real estate, or if in an action for the recovery thereof, judgment shall be rendered against him, in consequence, 1. Of any irregularity in the proceedings concerning such sale: or, 2. Of the judgment upon which such execution issued being vacated or reversed; such purchaser, his heirs 85 20 Johns. Rep. 49. 88 1 R. Laws, 505. s. 13. 89 4 Cow. Rep. 415. AS TO LANDS. or assigns, may recover of the party for whose benefit such FIERI FACIAS real estate was sold, the amount paid on the purchase thereof, with interest.”80 "The party for whose benefit such real estate was sold, and his personal representatives, upon such recovery being had against him in consequence of any irregularity in the proceedings concerning such sale, may have further execution upon the judgment by virtue of which such sale was made, to levy the sum paid on such sale, with interest; and such judgment shall be deemed valid and effectual for that purpose, against the defendant therein, his personal representatives, heirs, and devisees, but not against any purchaser in good faith, or any incumbrancer by mortgage, judgment, or otherwise, whose title or whose incumbrance shall have accrued before the levy of such further execution."'81 "When lands and tenements, in the hands of several per-. sons, shall be liable to satisfy any judgment, and the whole of such judgment, or more than a due proportion thereof, shall be levied upon the lands of any one or more of such persons, the persons so aggrieved, or their personal representatives, may compel a just and equal contribution by all the persons whose lands and tenements ought to contribute to the satisfaction of such judgment."82 "Such lands and tenements shall be liable to such contribution, in the following order: 1. If they were conveyed by the defendant in the execution, they shall be liable in succession, commencing with the lands last conveyed: 2. If they were sold under execution against the defendant, they shall also be liable in succession, commencing with the lands sold under the last and youngest judgment: 3. If there be lands so liable, which were conveyed by the defendant in the execution, and also lands which have been sold under execution against such defendant, they shall respectively be liable in succession, according to the order herein prescribed."83 FIERI FACIAS "If a bill be filed in the court of chancery to compel such contribution, the person aggrieved shall be entitled to use the original judgment, and by virtue thereof, to levy the amount which ought to be contributed by the lands and tenements subject to such judgment; and for that purpose, such judgment shall remain a lien and charge upon such lands and tenements, for the term of ten years from the docketing thereof, to the extent of the sum which ought to be so contributed, notwithstanding such sum, or any part thereof, may have been paid by the party seeking such contribution."84 "But such original judgment shall not remain a lien upon any lands, nor shall they be subject to an execution as herein provided, unless the person aggrieved, within twenty days after the payment of any sum of money by him, for which he shall claim a contribution, shall file an affidavit with a clerk of the court in which the original judgment was rendered, stating the sum paid, and his claim to use such judgment for the reimbursement thereof."'85 "On the filing of such affidavit, the clerk shall make an entry in the margin of the docket of such judgment, stating the sum so paid, and that such judgment is claimed to be a lien to that amount. If such judgment be in the supreme court, such clerk shall also transmit a copy of such entry to the other clerks of that court, at the same time with his docket of judgments, and the like entry shall be made by such clerks in the margin of their dockets of such judgments."86 SECTION IV. OF THE RETURN OF THE FIERI FACIAS, AND PROCEEDINGS THERE UPON. and where On the return day of the fieri facias, the sheriff should return Return when it, and if he do not, a rule may be entered that he return it made. within twenty days after notice of the rule, or that an attachment issue against him.8 87 We have seen to what clerks' offices the sheriffs of the different counties are required to return their writs.88 The return must be made in the name of the sheriff, and not by the deputy in his own name. 89 If the Time enlurgproperty of the goods be disputed, it is usual for the court, on the suggestion of a reasonable doubt, for the protection of the sheriff, to enlarge the time for making his return until the right be tried between the contending parties, or one of them has given him a sufficient indemnity.90 ed. turns. The returns commonly made by the sheriff to a fieri facias, Different reare, 1. Fieri feci, or that he has caused to be made of the defendant's goods and chattels, or of his goods and chattels, lands and tenements, as the case may be, the whole or a part of the debt, &c., which he has ready to be paid to the plaintiff.91 2. That he has taken goods, &c. of the defendant to a certain amount, which remain in his hands unsold for want |