Fraley vs. Bentley, et al.
for but $500, thus rendering it clearly irregular. (2 U. S. Dig., 356, § 938.)
5. The levy was upon the land—the advertisement was to sell the interest of Bentley & Andrews in the land. Our statute only makes the land subject to sale and not the interest of the party in the land.
6. Nowhere does it appear by the statement or affidavit of the officer that the requisite notices were posted in five places. Attempt was made to prove loss of execution and return, but the only proof was affidavit of clerk and not that he had diligently searched. Nor was there any proof but what plaintiff in the execution or his attorneys might have known where it was. Until the proper proof was made no proof of its contents was ad?nissible. But there was no attempt by plaintiff in court below to even prove contents of execution and return. The only proofs upon which the order of confirmation was made, were the affidavits of certain persons including the sheriff of what had been done in the premises. Nothing that was of any binding force or effect, and if false the defendants in the execution were without remedy. They could not sue the sheriff for false return. Such proof is something the law does not recognize, and upon it no title to land can be based. (4 U. S. Dig., 760, § 567.) The only proper, legal, proof was the return of the officer upon the execution; and if it is lost, a new one could be supplied by the order of the court upon notice to other party and motion, and the return endorsed thereon. Then if false the party had his remedy. (See 1 Abb. Dig., 119, § 564; See 2 Abb. Dig., 647, § 590; See 3 Abb. Dig., 46, § 421; 1 Abb. Dig., 109, § 450; 1 Abb. Dig., 110, § 458; 2 U. S, Dig., 316, § 39.) These lands were exempt from levy and sale under exemption laws, as a homestead, and defendants had a right to select them as such. Therefore, the levy and sale passed no title, and defendants ought not to be driven to the necessity of bringing suit to remove cloud sought to be cast upon their title by the proposed deed upon confirmation of sale. (2 U. S. Dig., 356, § 937: Laws 1862, p. 300, § 8.)
