Opinion of the Court by
Justice Smith.
This was an action of trespass, for breaking and entering the close of the plaintiff. This case presents for consideration this question, whether persons may make a subdivision of time for the exclusive occupancy of the whole of a tract of real estate ?
Joint tenants may make subdivisions of premises, and of the occupancy thereof, and may maintain several actions. According to this decision, it is thought that the subdivision of timefor the occupancy is analogous, and may be legally done. The premises in question were alternately occupied by Swearingen, and another person of the name of Smith, a joint owner of two-thirds of the premises with Swearingen.
Smith occupied for two weeks, and Swearingen for one, in succession. From the evidence, it appears that Swearingen came into his possession by the locking of the gate of the mill, on the last evening of Smith’s two weeks, by his agent. The holding of possession, therefore, under color of the previous entry under Smith, whose right expired with the two weeks, was tortious, and the court below properly instructed the jury that Curtis was a trespasser.
The offer to give in evidence the three executions against Swearingen, was, we think, properly rejected; there was no offer to show a judgment, and the regularity of the sale, and it is not pretended that any deed was ever executed by the sheriff to Curtis, as the purchaser of the premises in question. I am of opinion the judgment should be affirmed. ,
Judgment affirmed.
A sheriffs deed can not be given in evidence without producing the judgment and execution under which the sale was made; without them, the sheriff has no authority to sell. Den v. Wright et al., 1 Peters’ C. C. Rep., 64.
The general doctrine in regard to the sale of land by a sheriff is, that his deed is inadmissible in evidence, unless the judgment and execution under which the sale was made, be produced, to show the sheriffs authority to sell. Bybee v. Ashby, 2 Gilm., 163. Davis v. McVickers, 11 Ill., 329.
The act of February, 1841, (Purple’s Statutes, 646, sec. 21; Scates’ Comp., 609,) provides that the sheriffs deed shall be evidence that the provisions of law in relation to sales of land on execution were complied with, until the contrary be shown; but this does not dispense with the necessity for the production of the judgment and execution, which are still necessary before the deed can be read in evidence. Bylee v Ashby, supra.
When land is sold on execution, and a sheriffs deed thereon is executed, but no judgment is shown to support such execution, no title passes to the purchaser. In this case the execution described the judgment as having been rendered in 1844. The judgment offered was rendered in 1843. The variance was held to be fatal. Pickett v. Hartsock, 15 Ill., 283.
A sheriff’s deed must convey the land levied on and sold; and if the levy is so uncertain in its description of the premises levied upon, that it can not be understood what they are, the sale will be void. The deed can not remedy it. Fitch et al. v. Pinckard et al., 4 Scam., 84.
There should be entire uniformity in the return to the execution, the certificate of sale, and the deed, where real estate is sold by the sheriff, or the deed will be invalid. Dickerman et al. v. Burgess et al., 20 Ill., 266.
A certificate of sale by a sheriff to another person than the purchaser, as shown by his return to the execution, is a void act. Id.