debtor, and the officer accepts the execution with such directions, and consents and undertakes to execute it, any act done by him in pursuance of that purpose is a beginning to execute it, and constitutes a seizure; and the making of a memorandum which enables him to fix the date of such act, and make his return, is sufficient for that purpose.' With us, the officer is required to give notice of the sale of real property under execution by posting notices thereof in the township or city where the property is situated, and by publication in a newspaper. Code Civ. Proc., § 692. Notice thus given is certainly an unequivocal act manifesting the intent of the officer to appropriate the described property to sale for the satisfaction of the writ, and, in our opinion, is a sufficient levy in any case where the judgment is a lien on the property to be sold. In a case in the New York court of appeals a question arose upon the effect of a statute relating to the execution of process by a seizure of or levy on money or other property in pursuance thereof.' A sheriff, holding such process, advertised for sale certain real property thereunder; and this was held to constitute a sufficient 'seizure,' within the meaning of the statute. Institution v. Anderson, 83 N. Y. 174. We are safe in saying that, if it was a sufficient seizure, it was also a sufficient levy."

Sec. 335. Appraisement - Notice of sale. In Nebraska, an officer, levying an execution upon real estate, must cause an appraisement of the property to be made and a copy of such appraisement to be deposited in the office of the clerk of the district court from which the execution issued before the sale is advertised. First Nat. Bank v. Hamer, 51 Neb. 23 (70 N. W. Rep. 497). Particular appraisement held valid. Guelot v. Pearce, Ky. (38 S. W. Rep. 892). Neb. Code Civ. Proc., § 491d, construed and applied--duty of officer to deposit copy of appraisement in the office of the clerk of the court. Reuland v. Waugh, 52 Neb. 358 (72 N. W. Rep. 481). Ga. Laws 1890-91, Vol. 1, p. 241, construed and applied sufficiency of notice by advertisement. Bird v. Burgsteiner, 100 Ga. 486 (28 S. E. Rep. 219). Mo. Rev. Stat., 4941-notice of sale and place of making saleamended, Laws 1899, p. 208.

Sec. 336. Certificate of purchase-Sheriff's deedConfirmation. A sheriff's certificate of purchase does not operate to pass any title to the purchaser in the absence of the execution of a deed by him after the expiration of the period allowed for redemption. Hill v. Swihart, 148 Ind. 319 (47 N. E. Rep. 705). In Tennessee the execution of a sheriff's deed is necessary in order to vest the legal title in the purchaser. Gross v. Washington, Tenn. (38 S. W. Rep. 442). As to the jurisdiction of the court of ordinary in Georgia, to compel a sheriff to execute a deed for land sold under execution by him, see Burekhalter v. O'Connor, 100 Ga. 366 (28 S. E. Rep. 154). N. Dak. Comp. Laws, § 5149 construed and applied-nature of proceedings upon application to confirm an execution sale. Warren v. Stinson, 6 N. Dak. 293 (70 N. W. Rep. 279). Where a sale is otherwise regular, the fact that it has not been confirmed by the court according to the statute, will not defeat the purchaser's title, upon a collateral attack by one who does not claim either through or under the judgment debtor. S. Dak. Comp. Laws, §§ 5415, 5160, construed and applied. Baxter v. O'Leary, 10 S. Dak. 150 (72 N. W. Rep. 91; 66 Am. St. Rep. 702). In Maine, it is provided by statute that the cost of Internal Revenue stamps affixed to a sheriff's deed shall be taxed as a part of the costs of the sale. Laws 1899, ch. 97. A recent statute of Kansas makes a sheriff's deed "sufficient evidence of the legality of the sale and of the proceedings therein until the contrary be proved," and provides that it shall vest in the purchaser the title of the execution defendant. Laws 1899, p. 190. In Virginia, a sheriff's deed from which it appears that the sale was regularly made is made prima facie evidence of that fact and the truth of its other recitals. Laws 1897-98, p. 322.

Sec. 337. Title, rights and liabilities of purchaser. A purchaser at an execution sale takes subject to the rights of the parties as they shall be adjudicated in the action then pending and by virtue of which the property is sold, Manning v. Ferguson, 103 Ia. 561 (72 N. W. Rep. 762); but he does not succeed to an after-acquired title in the execution debtor. Rupert v. Jones, 119 Cal. 111 (51 Pac. Rep. 26). A pur

chaser at an execution sale takes subject to pre-existing equities in favor of third persons against the execution debtor. Clemons v. Cox, 114 Ala. 350 (21 So. Rep. 426). A purchaser takes subject to the title of a prior purchaser from the execution debtor who was in possession of the property at the time of the execution sale under a deed void as a conveyance, but valid as a contract to convey, and who has paid the purchase price. Murphy v. Green, Ala. (22 So. Rep. 112). The title of a purchaser at an execution sale, had under a judgment in attachment, relates back to the levy of the judgment and has priority over intervening incumbrances. Reilley v. Wright, 117 Cal. 77 (48 Pac. Rep. 970). The title and possession of one holding under a void execution sale, cannot be disturbed by one who cannot show legal title. King v. Coleman, 98 Tenn. 561 (40 S. W. Rep. 1082). In Georgia a purchaser acquires an unincumbered title to the land, a secured creditor being transferred to the proceeds of sale. Marshall v. Hodgkins, 99 Ga. 592 (27 S. E. Rep. 748). Wash. Code Proc., § 519, giving a purchaser the right to possession or the value of the use and occupation from the date of the sale, does not give him the right to rents assigned by the judg ment debtor before the judgment was rendered. Griffith v. Burlingame, 18 Wash. 429 (51 Pac. Rep. 1059). Ky. Stat. 1894, § 1689, Civ. Code, § 449, applied-motion by purchaser for writ of possession-trial by chancellor. Scott v. Mitchell,

In Alabama it is held that a purchaser at an execution sale is not liable to the redemptioner for waste. O'Connor v. Bank of Attalla, 116 Ala. 585 (22 So. Rep. 902). Upon the setting aside of a sheriff's sale on account of mutual mistake, the purchaser is entitled to credit for taxes paid on the property and expenditures made in necessary repairs, as against the rents received by him. Howlett v. Central Car L. & Imp. Co., 50 S. C. 1 (27 S. E. Rep. 533). An execution creditor is not entitled to the summary remedy for recoving judgment against a purchaser at execution sale for the amount for which real estate is sold, provided by Ind. Rev. Stat. 1894, § 772, where such purchaser made full payment of the amount of his bid to the sheriff at the time he received his

deed, by means of a check which was received under a certain condition known to such execution creditor who subsequently accepted it, because payment of the check was refused on order of the drawer, where the judgment creditor makes no offer to rescind the contract or tender back the check. Sutton v. Baldwin, 146 Ind. 361 (45 N. E. Rep. 518).

Sec. 338. Validity of sales-Setting aside. A sale of land on execution under a judgment rendered against a defendant, over whom the court failed to obtain jurisdiction, is void. Bernhardt v. Brown, 119 N. C. 506 (26 S. E. Rep. 162; 36 L. R. A. 402). Where, on account of a mutual mistake in a vendee's deed, the wrong land is described, an execution sale of such land against him is void, and a purchaser thereat acquires no right to have the mistake corrected so as to give him title to the land actually purchased by the vendee. Burrows v. Parker, 31 Or. 57 (48 Pac. Rep. 1100; 65 Am. St. Rep. 812). Where it appears that the purchaser at an execution sale and another person combined to prevent bidding and entered into an agreement that the purchaser should buy the property as low as possible and sell it to the other at an agreed advance, which agreement was carried out, the sale may be set aside. Lennon v. Heindel, 56 N. J. Eq. 8 (37 Atl. Rep. 147). While, as a general rule, the proper remedy to set aside an execution sale is by motion yet under exceptional facts a bill in equity may be filed to accomplish this object. Warren v. Stinson, 6 N. Dak. 293 (70 N. W. Rep. 279). One in possession of real estate under a claim of own. ership, may enjoin an execution sale of it as the property of another who is shown to have no interest in it, upon making a showing of presumptive title. Moore v. Kleppish, 104 Ia. 319 (73 N. W. Rep. 830). Where the execution plaintiff, after a sale had been advertised, gave explicit orders to the sheriff not to sell, and paid the costs and expenses up to that date, the delivery of a deed in pursuance of a subsequent sale, which the sheriff was compelled to make by strangers to the record and of which the plaintiff had no notice, may be enjoined by him. Vineland Nat. Bank v. Shinn, 55 N. J. Eq. 415 (36 Atl. Rep. 953). An execution sale of land to satisfy a judgment assessing benefits against it in a condemnation pro

ceeding, cannot be attacked collaterally on account of mere errors or irregularities in the judgment not going to the jurisdiction. Lovitt v. Russell, 138 Mo. 474 (40S. W. Rep. 123). In order for an execution sale to be set aside on account of the property being exempt from sale as a homestead, the application must show that the homestead character of the property existed at the time of the sale. Zander v. Scott, 165 Ill. 51 (46 N. E. Rep. 2). Particular facts held sufficient to show cause for setting aside an execution sale. Cornoy v. Wetmore, 101 Ia. 202 (70 N. W. Rep. 178). Particular facts held insufficient to show ground for enjoining an execution sale. Jones v. McCrady, 48 S. C. 533 (26 S. E. Rep. 802). Ind. Rev. Stat. 1894, § 294, which prohibits an action for the recovery of real property sold on execution, by the execution debtor or any person claiming under him after ten years, is held to apply to sales irregular or absolutely void from defective descriptions or other causes, and to protect the purchaser and those claiming under him in a perfect title. Marley v.. State, 147 Ind. 145 (46 N. E. Rep. 466).

Sec. 339. Miscellaneous notes. Payment of the purchaser's bid may be made by check where the officer making the sale and the parties interested consent thereto. Sutton v. Baldwin, 146 Ind. 861 (45 N. E. Rep. 518). In South Carolina it is held that an execution sale under a junior judgment divests the lien of senior judgments whether executions have been issued upon them or not, and it is the duty of the sheriff to apply the proceeds of such sale to the various judgments having a lien according to their rank. Matthews v. Nance, 49 S. C. 389 (27 S. E. Rep. 408). See Ballards' Law of Real Prop., Vol. V, § 321. In Louisiana it is held that a sheriff holding a plantation under seizure by attachment, cannot, without the consent of the plaintiff, proceed to its cultivation at the expense and risk of the latter, and if the planting venture prove a failure and loss ensue, recover the amount of the loss from the plaintiff as costs of suit to be taxed. Amrican Nat. Bank v. Childs, 49 La. 1359 (22 So. Rep. 384). Washington has a new statute covering the entire subject of "sales of property under execution." Laws 1899, p. 85.