of the property for a long time after the sale but where a stranger to the action becomes the purchaser of the property, it may be left in the possession of the debtor without any presumption of fraud.? In order to constitute a valid sle as against the creditors of the debtor without a change of possession, the proceeding must be under the authority and precept of law, and the right to make the sale not rest upon the consent of the debtor. Such a sale being made against the will of the defendant, he has no control of the direction the title is to take, and if there is no fraud practiced, he can only obtain title by re-purchase.* While an officer is not required to sell goods in the same manner a retail merchant does, he should offer the property in such a way as will be most advantageous to all the parties interested and also the purchaser. The property to be sold must be designated by the officer. A sale of a lot hay in a stack, without being separated therefrom, or fifteen horses out of a drove of one hundred, is void. The sale of a number of brick in a kiln, implies the right of the purchaser, on the kiln being opened, to take that number indiscriminately, in the usual manner of selling them. A purchaser has the right to enter upon the premises where the sale takes place, and remain long enough to remove the property purchased.' A sale made pending an action in trover is absolutely void, and vests no title either in the execution-plaintiff, or the plaintiff in the trover suit. $219. SALE OF GROWING CROPS. If a crop is mature,— as, for instance, a crop of potatoes,-the sale of it in the ground, to be gathered immediately, is not within the Stover v. F. & M. Bank, 15 Miss. Garland v. Chambers, 19 Miss. 337. 305. Taylor v. Mills, 2 Edw. Ch. Coleman v. Bank, 2 Strobh. Eq. 285. 318. Gardiner v. Tubbs, 21 Wend. 169. Schott v. Chancellor, 20 Penn. 195. * Gates v. Gaines, IO Vt. 346. Andrews v. Brook, II Ala. 953. Floyd v. Goodwin, 8 Yerg. 484. Abney v. Kingsland, 10 Ala. 335. Simerson v. Bank, &c. 12 Id. 205 Kelly v. Hart, 14 Vt. 50. 4 Kistler's Appeal, 73 Penn. 393. Sheldon v. Soper, 14 Johns. 352. Mason v. White, 11 Barb. 173. Waring v. Loomis, 4 Id. 484. statute of frauds; the ground is a mere warehouse till the crop can be removed, or if the crop is still growing. Growing crops, if taken in execution, may be sold at once, or they may be allowed to mature, and the purchaser has the right to enter and take the crops away, or to secure harvest, and preserve it.' But if an officer seize a tenant's growing crops under an execution, and before he makes a sale under the writ, a writ of habere facias possessionem is delivered to him founded on a judgment in ejectment at the suit of the landlord; the demise being laid before the issue of the fi. fa., the officer can not sell the growing crops under the fi. fa., for the tenant is a mere trespasser from the time of the demise. Where a levy is made upon a lot of corn unshucked, it may be divided and sold in piles. A sale of growing crops, after the land on which it has been growing is sold on a prior execution, passes no title. A sale of growing crops two miles from the farm is void.' $220. SALE OF MORTGAGED PROPERTY, LEASES, &c. Where a stock of goods subject to a mortgage is sold, it may be sold in bulk,' so that the purchaser may be enabled. to become the owner of the property by payment of the mortgage debt; if the property is used for agricultural purposes, and from its situation and use can not be all brought to the place of sale, though on the premises, if the bidders are informed by the officer what property is to be sold, and they have it pointed out to them, a sale of it will be valid.' A sale only passes such title as the debtor has in the property. If the goods are duly mortgaged, and the debtor 1 Parker v. Staniland, 11 East. 362. Warwick v. Bruce, 2 M. & S. 205. Evans v. Roberts, 5 B. & C. S29. Austin v. Sawyer, 9 Cow. 42. Carrington v. Roots, 2 Mees. & W. 248. Jones v. Flint, 10 Ad. & Ell. 753. Northern v. State, I Ind. 133. Terril v. Thompson, 3 Bibb. 273. Hartwell v. Bissell, 17 Johns. 128. Whipple v. Foot, 2 Id. 418. Hodgson v Gascoyne, 5 B. & A. 88. 4 Bevan v. Byrd, 3 Jones L. 397. Bear v. Bitzer, 16 Penn. 175. Smith v. Fritt, 1 D. & B. 241. Tifft v. Barton, I Denio, 171. Carpenter v. Simmons, I Rob. (N. Y.) 360. Tifft v. Barton,4 Denio, 171. Bakewell v. Ellsworth, 6 Hill, 484. Carpenter v. Simmons, 1 Rob. (N. Y.) 360 under the mortgage has the right of possession, a purchaser at an execution sale acquires the debtor's right of possession as well as the debtor's right to redeem the property from such lien; as regards the rights of the mortgagee, the sale in no way affects them.' A levy on and a sale of personal property by a creditor has priority over a mortgage of the same property, if the mortgage is defective and invalid, to creditors without notice. An officer is authorized to seize and convey a tenant's interest in fixed articles leased together with the premises to which they are attached, although he can not sell the articles as divided chattels in separation from the freehold,' and where he takes a lease. and fixtures, he may sell the fixtures separately, if he can not find a purchaser for the whole.* 1 Hull v. Garnley, 11 N. Y. 501. Piper v. Hilliard, 52 N. H. 209. Carpenter v. Simmons, 1 Rob. (N. Y.) 360. Ryall v. Rolle, 1 Atk. 165. Gordon v. Harpur, 7 T. R. 11. 43. 4 Barnard V. Leigh, I Stark. CHAPTER XII. OF THE SALE OF REAL PROPERTY. Principles Governing Sales of Real Estate. - How to be made.-Who may Waive the Statutory Requirements.How it should be Sold.-Sale in Parcels, When to be made.-Sales en masse, when Voidable.--When they will be Sustained.-Sale of Property conveyed prior to issue of Execution.-Sale in Inverse Order.-Sale of Equity of Redemption.-Effect of Sale.-Title which Purchaser obtains, in the various States, by Sale of Equitable Interests, &c.-Application of the Statute of Frauds to Sales on Execution. When they are taken out of the Statute.Application of Estoppels to Sales. - How and When Applied. § 221. THE practice of selling real estate under execution being unknown at common law, the principles governing the sale thereof are expressly defined by statute. The right of subjecting real property to the satisfaction of debts by legal process having been given by statute in England, and made applicable to the English Colonies, in the American States has been firmly established by various acts of the State Legislatures under certain statutory regulations in order to prevent abuses and unnecessary sacrifices. Being special statutory proceedings, the requirements of the law, under which proceedings are instituted to change the title to real property, must be strictly pursued.' Thacher v. Powell, 6 Wheat. 118. son, 2 How. 256. Voss v. Johnson, Bloom v. Burdick, 1 Hill, 130. Jackson 40 Ind. 19. Stead's Executors v. v. Esty, 8 Wend. 151. Benson v. Course, 4 Cranch, 403. Collier v. Smith, 42 Me. 414. Griffin v. Thomp- Stanbrough, 6 How. 14. Erwin y Sales made under an execution are made under the naked authority of the writ. They must conform in all respects with the rules which the law lays down for the protection of the debtor. If not so made, they may be held irregular and void. The power of an officer to sell lands being a naked statutory power, not coupled with an interest, if the performance of all the statutory prerequisites to the exercise of such power do not appear in the deed or aliunde, the sale will be void.' Everything essential to a title ought to appear of record. The mode in which final process is to be executed is regulated by statute. The seizure of property is necessary to make the sale legal. Subsequent proceedings to vest the title in the purchaser have reference to the time of seizure, and depend upon the state of the title as it then was.' If a sale is made under a decree of foreclosure it must be sold in conformity with the decree, if not authorized by its terms it can not stand.' An officer has no authority to make a sale upon a decree unless an order of sale or special execution issued upon the decree is placed in his hands. An officer has no power to impose. conditions by which the estate sold is to be incumbered in the hands of the purchasers.' The sale must be made according to the law in force at the time of sale; not at the time of judgment, except in cases specially provided, or 40 N. H. 173. 10 N. H. 296. Abb. Pr. 137. Castler v. Lowry, 7 How. 172, 181. Whittier v. Varney, Husted v. Dakin, 17 Tiffany v. Glover, 3 |