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Turner.

1824. the Clerk, that an execution issued, correspond

ing with the order of the Court, but that the exeWalker

cution could not be found. If the execution corresponded with the order of the Court, then it authorized the sale of the property attached ; and as the return of the constable does not state that any property was attached, it is difficult to perceive by what authority the lot in dispute was sold to Sappington. As to the recital in the deed from the Sheriff to Sappington, that the writ of vendi tioni exponas, under which the sale was made, authorized the sale of this lot, it is inadmissible as evidence of that fact against the plaintiff, who was beither a party noi privy to the deed.

But passing by this objection to the validity of the sale, the Court will inquire, whether the same was sanctioned by the judgment of a tribunal having competent jurisdiction of the case in which it was rendered. It is, in the first place, by no means to be admitted, that at the time these proceedings were instituted, a Justice of the Peace was authorized, by the laws of Tennessee, to issue an attachment against the estate of a non-resident debtor, returnable before himself, and determinable by him. By the 19th, 20th, and 21st sections of the act of 1794, a Justice of the Peace is empowered to issue an attachment. against the estate of a debtor who has removed, or is removing himself privately out of the county, or who so absconds and conceals himself, that the ordinary process of law cannot be served upon him; and also, against the estate of a non-resident; but in all these cases, the attachment is to be returned

1824.

Turper.

to the Court where the suit is cognizable, and is to be there adjudicated. This attachment may be levied on the lands, goods, and chattels of the debtor. By the 56th section of this act, the magistrate is authorized, in cases where by the said act he has jurisdiction, to issue an attachment against the estate of an absconding or absent debtor; and the proceedings thereon, before him, are to be in a summary way, as on a warrant. The Court does not understand that this section extends to persons who are citizens and residents without the limits of Tennessee. It may well be doubted, then, whether the proceedings before the Justice were not, on this ground, coram non judice. But without giving a positive decision upon that point, the Court is of opinion, that the Justice had not jurisdiction of the subject matter, upon which his judgment was rendered. By the 52d section of the above act, jurisdiction is given to any Justice of the Peace, in cases of debts and demands amounting to twenty dollars and under, where the balance is due on any specialty, note, or agreement, for money or specific articles, or for goods, wares and merchandise, sold and delivered, or work and labour done; in which cases he is empowered toʻrender judgment, and to award execution against the goods and chattels, or the body of the debtor. It is admitted by the counsel, that a subsequent law raised the jurisdiction of the Justice beyond the sum for which this judgment was rendered. By the act of 1786, which we understand is still in force in Tennessee, it is provided, that when an

1824.

Walker

Turner.

execution is in the hands of a constable, in consequence of a judgment of a Justice of the Peace, and there shall be no personal property whereon to levy it, in such case he shall levy it on the real estate of the defendant, and make return thereof to the next County Court, that the Court may order the Sheriff to sell the said real estate, or enough thereof, according to law. Whether it was under this act, that the proceedings before the magistrate found their way into the County Court, it is impossible for this Court to decide. It does not seem to us, that the case is one which was provided for by that act, since it docs not appear that any execution was issued by the magistrate, upon his own judgment; or if any did issue, that it was levied on the real estate of the debtor, and returned to the County Court. Be all this as it may, the ground of the jurisdiction of the magistrate does not appear upon the face of the proceedings before him; without which, the Court must consider them as coram non judice. The cases of which he had cognizance, are particularly enumerated in the 52d section, before recited; and it appears, by the record given in evidence, that the demand sworn to by Sappington, was for 20 dollars and 25 cents, as appeared by the books of his intestate. But this was not the assertion of a cause of action, for “a balance due on any specialty, note or agreement, for money or specific articles, or for goods, wares and merchandise sold and delivered, or for work and labour done.” It might have been for rent duc, for money advanced, money received to the use of the plaintiff, and even for money claimed

v

by the plaintiff as due ex dcbito, and charged in 1824. the books of the intestate. It is obvious, that the

· Walker magistrate had no authority to take cognizance of

Turner these cases, and of others, which might be stated; and since his jurisdiction was strictly special and limited, it is essential to the validity of his judgment, and of the proceedings under it, that the record should show that he acted upon a case which the law submitted to his jurisdiction. The order of the County Court, for the sale of the defendant's land, having been founded upon this judgment; is exposed to the same objection which applies to the judgment itself. If the judgment was void, an execution, or order of sale, founded upon it, was equally so. This Court must, therefore, decide, that the deed from the Sheriff to Sappington, under whom the defendant claims, was utterly void, having been made without any legal authority.

2. The next question is, whether, under the circumstances stated in the bill of exceptions, the possession of the defendant was protected by the statute of limitations of the State of Tennessee ? This statute, which passed in the year 1797, enacts, “ that in all cases wherever any person or persons shall have had seven years peaceable possession of any land, by virtue of a grant, or deed of conveyance, founded upon a grant, and no legal claim by suit in law be set up to said land, within the above said term, that then, and in that case, the person, &c. &c. holding possession as aforesaid, shall be entitled to hold possession, in prefercnce to all other claimants, of such quantity of land as shall be specified in his, her, or their said grant.

V.

Turner.

1824. or deed of conveyance, founded on a grant as afore

said.” Walker

In the case of Pitton's lessee r. Easton,(1 Wheat. Rep. 476.) a construction of the above act was given by this Court, in which it was decided, that a possession of seven years is a bar, only when it is held under a grant, or under a deed founded on a grant; and that, as the defendant, in that case, showed no title under the trustees of the town of Nashville, nor under any other grant, his seren years possession was insufficient to protect his title, or to bar that of the plaintiff, under a conveyance from the trustees.

That was a stronger case for the defendant than the present ; for in that the defendant gave in evidence a deed, for a valuable consideration, from Josiah Love to William T Lewis, at a time when the possession of the land in controversy was vacant. That Lewis, immediately after the conveyance, took possession of the land, made valuable improvements thereon, and continued so possessed for about seventeen years, when he sold and conveyed the same to the defendant, who took and continued the possession until the ejectment was brought. Here, then, was an entry upon land in the actual possession of no person, under a bona fide deed, and a long continued possession under that title, which could not avail the defendant, because he could not trace a connected title up to a grant. In the present case, it appears, from the defendant's own showing, that Sappington, under whom he claims, had no title. If the defendant claims under a grant, or under mesne conveyances,

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