The deed delivered by the sheriff to He well upon the sale under the judgment of June 25, 1869, recited that he had sold the premises therein described at public auction to Hetvell, who was the highest bidder therefor. The proceedings resulting in the deed were founded on the forty-'fifth section of the act of 1861, entitled, “An Act to provide revenue for the government of this State.” In that section the following proviso occurs: “Provided, that the sheriff, in selling said property, shall only sell the smallest quantity that any purchaser will take and pay the judgment and all costs,” and this proviso operates a limitation upon• the authority of the officer to make the sale. It was so held by the Supreme Court of the United States in the case of French v. Edwards, where a sheriff’s deed, made under this statute, and in all respects like the deed now under consideration, was held to be void. (13 Wallace, 511.)
Judgment reversed and cause remanded.
The cause having been argued and submitted in the absence of counsel for respondent, a reargument was ordered by consent; and upon the reargument the judgment was reversed and the foregoing opinion ordered to stand as the opinion in the case.