¶1delivered the opinion of the court.
¶2The objection to a recovery on the note here sued upon is, that it was given for the price of land sold, and that the purchaser acquired no title, the vendor having none himself.
¶3The objection to the title was, that the party had acquired it under an execution sale upon a general judgment against the owner, who had previously mortgaged it to another, and that the mortgage had been foreclosed and the land sold under a special fi.fa. and bought in by a stranger, in whose hands the title was still outstanding.
¶4The reply to this was, that the sale was void for want of the notice of execution required by the act of the 12th March, 1849, and upon this ground, the court rejected the sheriff’s deed under the fi. fa. when offered by the defendant, having previously so decided at the same term, in a direct proceeding by Hobein against Murphy, instituted to set aside the deed for that cause.
¶5This point, however, has been decided otherwise here at the present term, reversing the judgment of the Franklin Circuit Court in the case referred to, and the present judgment must therefore also be reversed, on account of the rejection of this deed, and the cause .remanded.
¶6The other judges concurring, it is so ordered.