This was a writ of error, upon which errors were assigned. For that the Circuit Court, who tried this cause which was an action in ejectment, did not suffer the plaintiff to produce and give in evidence the paper marked C. This was a deed from the sheriff of Montgomery to Seawell for the lands in question. Seawell had taken out an attachment in Sumner county in the year 1789, or thereabouts, against the executors of Armstrong; and caused it to be levied on the lands of the deceased, who resided and died in North Carolina. It was founded upon the Act of 1794, c. 1, sec. 21. He obtained judgment on this attachment against the executors; and the land attached was sold, but satisfied only part of the debt. He then caused scire facias to issue against the heirs and devisees of the deceased, not naming them, but describing them as the heirs and devisees of Armstrong. And upon two returns that the heirs were not found, he obtained judgment for sale of the lands,c. Divers executions issued; and upon one of them the lands in question were sold, and purchased by *Page 281 Seawell. But it being discovered that, in this execution, a blank for the county to the sheriff of which it was directed had not been filled up, another sci. fa. issued to the sheriff of Montgomery, and he sold the same land by virtue thereof to Seawell, and gave him the deed for it referred to in the bill of exceptions, and in the assignment of errors, as the paper marked C. Seawell, on the trial in ejectment, proved the death of Armstrong, and the proceedings at law before stated, and then offered to read this deed; but the Judge of the Circuit Court rejected it, being of opinion that the judgment aforesaid for the sale of the lands was wrong; and the fi. fa., and sale under it also, because the heirs and devisees were not named in thesci. fa., the sheriff's returns, or judgment, or even in thefi. fa. And the question raised by this record comes on now to be argued by Whiteside and Haywood, for the plaintiff in error, and by Hays and Orme, for the defendant in error.

Counsel for the Plaintiff in Error. — If this were a voidable judgment or an erroneous one, the fi. fa., or sale under it, vested a good title in the purchaser; for, if it ever should be reversed, the defendant will be entitled, not to the thing sold under it, but to the value thereof. 2 Cro. 698; 4 Mod. 161; 5 Com. Dig. 3, B. 20; Salk. 588; 8 Rep. 19-143. If it be a void judgment, then the fi. fa., and sale were also void, and the sheriff for seizing and selling was a trespasser. It can not be said of a void judgment that it authorizes the clerk to issue a fi. fa., or justifies the sheriff for seizing and selling; for if it did justify him, it would not be void; chat is, ineffectual to all purposes. Nor could it justify a sale unless also it justified the purchaser at the sale; for to validate the sale, and condemn the purchase at the same time, is not only absurd, but impossible. Can it be *Page 282 supposed that a sheriff shall be treated as a trespasser, who receives process from a court having authority to act upon the subject of that process, because he obeys it? Either he must execute it, or refuse to execute it. If the latter, then he is governed by his own judgment, and not that of the Court: if the former, must he act at his peril? Must he be ruined if the Court has given a wrong judgment; or must the law protect him? Surely it must protect him; for he has no means of knowing whether the Court has acted properly or improperly. He has not the means of forming a judgment, and, if he had the materials, he has not the knowledge that will enable him to decide. All that he can know is that the Court has power over the subject concerning which, by the process, it has directed him. Will it be said that, for seizing and selling under this fi. fa., the sheriff is liable to an action of trespass? He has done that which the Court ordered him to do; why punish him for the missing of the Court? why not rather punish the Court? If the Court is not to be punished for an error in judgment much less is the sheriff to be punished for acting in a case where he had no power to judge, and so could not commit an error in judgment at all. A judgment is not avoid but in the single case where the Court who gives it had no jurisdiction over the subject. Then, indeed, the officer is a trespasser if he acts in obedience to the process which commands execution of it; for he knows well enough that the Court has no power over it. He can well know the extent of jurisdiction, though he may not know all the rules the law proscribes to a court having jurisdiction for the government and regulation of its conduct. This reasoning is in conformity with 10 Rep. 76; 3 Inst. 231; 2 Salk. 674; Carth. 274; Cro. C. 395; 1 Str. 711; 2 Str. 1000; 2 Wills. 382; 2 Str. 924; 2 Wills. 485; 8 Term Rep. 427. If these *Page 283 arguments be correct, then the judgment being not void, over admitting it to be voidable, the sale can not be deemed invalid; and, if not, then this deed, marked C. is effectual to pass the estate to the purchaser, and ought to have been received as evidence by the Circuit Court.

But indeed the judgment is even not erroneous; for at common law asci. fa. against the heir, upon a judgment against the ancestor, is for the same purpose as a sci. fa. against the their upon a judgment against the executor in this country; namely, to have execution against the lands described. The sci. fa. against the heir under the Act of 1785, c. 4, is bottomed upon the same principles as the sci. fa. against the heir at the common law, and the latter sci. sci. fa. need not name the heir. Lil. Ent. 384; 2 Saunders, notes on pages 6-8; 5 Com. Dig. Pleader, 3 L. 3, 3 L. 6. If it be sufficient that the sci. fa. should issue against the heir by description, not naming him, as the above authorities prove, then it is to be considered that judgment may be given on it upon twonihils returned. 5 Com. Dig. Pleader, c. 3, sec. o; 2 Inst. 472; 2 Mod. C. 227; Ba. Ab. Sci. Fa. If it could not, then, in all cases where the heirs of devisees reside out of the State, their lands could not be sold; for on them there could lot be any personal service of the sci. fa. And what judgment is it that the Court could pronounce on such a sci. fa.? Certainly not against the heirs by name, for they could not be named anywhere on the record before the giving of judgment; and therefore the Court could not name them in the judgment, for the well-known form of it is, that the plaintiff shall have execution of the lands descended, c. It would be inconvenience were the law to require that the heirs should be named; for if the plaintiff should not rightly name them, then all sales of lands belonging to the heirs, under executions not rightly naming them, would be void, — *Page 284 a thing that must necessarily often happen; when, at the same time, there is no advantage the heirs could have if named in the sci.fa. that they could not have if only described; for, if by any means they should hear of a sci. fa. against the heirs of Armstrong, they would know that they were the persons meant as well as if the sci. fa. had been against them by name. The idea that every defendant might to be named is a mistake; for will not a sci.fa. he against executors generally? will not an action lie against the hundred? will it not lie against the inhabitants of Eraswell? And in this case in Term Reports, where an action was brought against the inhabitants of the county of Devon, it did not fail because an action in that form was against the law; but only because the action would not lie in any form. These cases prove that there is not any impropriety in maintaining an action against the defendants who are described and not named. And surely there is no inconvenience in maintaining the sci.fa. in that way. On the contrary, great convenience would time from it; as it will enable plaintiff's to get regular judgments many times, when, otherwise, a creditor would not be able to obtain any judgment at all by which the lands of the debtor could be sold. The main question in this cause is, Was the judgment void? and perhaps the true distinction is that stated at the bar, that a judgment by a competent jurisdiction is not void. Be that as it may, however, I am of opinion it can not be said of this judgment that it is void. Asci. fa. against heirs generally is good; and judgment may be pronounced upon two returns. The reason of the thing is strong for this position. Many times the creditor does not know and can not learn the names of the heirs, not can find where they are; he can do no better than describe *Page 285 them. If they get personal knowledge of the sci. fa., they will know from description that they are the persons intended. But if in all instances they must be named, it will needs happen that in many no judgment at all car be obtained. The practice heretofore is of some weight; in nineteen out of twenty instances, the practice has heretofore been to proceed in sci. fa. by description and not by name.

Again, I do not think the defendant in ejectment, or other stranger, ought to be allowed to object to the judgment and the sci. fa., when the heirs of Amstrong have acquiesced so long. As to Newnan and Maclin did not mean to decide this question.

I concur with what has been said by the other member of the Court; and I will now only say that the present objection is by a stranger, who ought not to be heard to complain when the parties to the judgment are satisfied. The plaintiff, in this, as in all other cases, must make out his title; but he can say to Williams, Stranger, stand aside; it is nothing to you whether I had a good judgment or not. The heirs do lot complain. If there be any defect you are not to meddle in that; for they and I are to settle it. The Court will say he is a stranger, who excepts to a title which is derived through a channel he had no concern with. If the parties acquiesce, why should he disturb them? As to Newnan and Maclin, if the title were in any respect doubtful, the Court could not compel the purchaser to receive it. That was all the Court decided. It was enough in that case if the Court could see that probable objections could be raised against the title. It may be true that the judgment is not void in any case where the Court has jurisdiction. But, without deciding on that point, we can see here that the judgment is not void, and that the Circuit Court has erred. Judgment reversed.