We must take it as established by the verdict, that the wagon and oxen sued for were the property of the *Page 481 plaintiff, and not of Fletcher. His Honor told the jury that the sale of the cow paid off the execution for $2.10 against the plaintiff, and therefore a sale of the plaintiff's estate in the wagon and oxen was unauthorized and void. This would have been right if there had been evidence to show, as his Honor assumed, that the cow was first sold. But the case states that there was no evidence as to which article was first sold. Of course, therefore, his Honor erred in this respect. But was it an error which prejudiced the defendant? We think not, for all the evidence shows that the sheriff did not profess to sell the estate of the plaintiff, and professed to sell only that of Fletcher.
There is no authority for saying that the fact that he had in his hands at the time an execution against the plaintiff, which he did not make known or profess to act under, made the sale operative to pass the title of the plaintiff. Any such doctrine would be unreasonable. In case of a disputed title, (as here,) a purchaser would never know whose estate he was buying. A sale by a sheriff might be made a cover for the grossest frauds, of which, if we may form an opinion from the facts stated, the present case would be a good illustration.
There is no error.
PER CURIAM. Judgment affirmed *Page 482