Leonard v. O'Neal , 84 Tenn. 158 ( 1885 )

Cooke, J.,

delivered the opinion of the court.

This was an action of ejectment. The land of the plaintiff in error was levied on, he being in possession, an order of condemnation had and venditioni ex-ponas issued,, under which it was sold and purchased by the defendant in error. Leonard waived in writing ■on the order of sale any advertisement of the sale, ■and the sheriff, in his return, stated that advertisement and notice had been waived in writing, on the order of sale by the defendant below. On the trial, the plaintiff proved by the sheriff, over the objection of •defendant, that he gave the defendant, in writing, the twenty days’ notice of the time, place, etc., of sale •as required by law, and explained that the statement in his return that the defendant had waived advertisement and notice, had reference alone to the advertisement in the newspapers, and notice of the sale by posters required to be put up at public places, .and was not intended by him to mean the twenty days’ written notice to the defendant in possession required by the statute, which had been actually given him at the time the return was written.

"We think this was not a contradiction of his return, and was competent and properly admitted. The defendant below testified that no such notice was ever given him, but the jury, under a proper charge, found for the plaintiff, and there is evidence sufficient to ■support the verdict. Some other objections were taken, but we think there is nothing in them.

We see no error in the record and affirm the judgment.