The exception taken by the plaintiff to the ruling of His Honor in admitting the endorsements on the executions as evidence on the part of the defendant is untenable. The *352executions were unquestionably competent evidence, and “a ■return when made is a matter of record, and is admissible in'all cases where the execution is. The rule allowing the return of officers to be read in evidence is based upon their responsibility for the truth or falsity of such returns, and is sufficient evidence of all the proceedings under the writ.” Herman on Executions, §214.
The exception to the ruling of His Honor in admitting in evidence the deed executed by the sheriff to Stephenson, is also untenable. So, likewise, was his exception to the ruling of His Honor including the evidence offered by the plaintiff in regard to the transaction between them as to the redemption of the land.
This evidence was offered to show that the agreement between the defendant and Stephenson, by which the latter was to purchase the defendant’s land under execution sale and hold the title until the defendant should repay the money advanced by Stephenson was covinous and intended to hinder and defeat the creditors of the defendant, and that the sheriff’s deed under the sale was void and passed no title to Stephenson. But we are unable to discover any of the “ ear-marks ” of fraud in the transaction. The agreement was perfectly legitimate. Such contracts between the defendants in execution and the purchasers of their land, under execution sale, have been sustained by repeated adjudications of this court. Vestal v. Sloan, 76 N. C., 127; Mulholland v. York, 82 N. C., 510.
And we cannot see how this case differs in principle from those cases. The defendant’s land was advertised for sale under execution, and Stephenson agreed to advance the money or lend it to the defendant to satisfy the execution, and buy at the sale and take the sheriff’s deed for the same and hold the land until ho was reimbursed. There was no concealment of any sort attending the transaction — no attempt or purpose to buy the land at a reduced price, but on the other hand, everything was done openly and fairly. Before the sale, Stephenson and the *353defendant went to the sheriff and enquired of him what was the amount of the execution, and being informed that $200 would cover the amount it called for, without any dallying, he at once bid the amount which he supposed would satisfy the execution. Could anything have been fairer?
Even if this transaction had not been free from the suspicion of “mala fieles,” the contention of the plaintiff that it was intended to hinder and delay the creditors of the defendant, cannot be sustained.
To avoid a deed or transaction under the statute of frauds, there must be a creditor to be defrauded, and before he can take advantage of the statute at law, it is held he must reduce his debt to a judgment, issue execution upon it and have the defendant’s land sold thereunder. Williford v. Conner, 1 Dev., 37D ; Grimsley v. Hooker, 3 Jones’ Eq., 4. But here, there was no creditor to be defrauded. There was no creditor except the plaintiff' in the judgment under which the land was sold, and she is not such a creditor as could take advantage of the statute, for the reason she had once had the land sold under execution on her judgment, and had no right to have it sold a second time under another execution upon the same judgment. ’When the land was once sold under execution of October 17th, 1873, the plaintiff had no right to issue another execution on the same judgment and have the same land sold a second time for the same debt.
Under present system, the judgment, like the former levy, creates the lien on land, and the execution upon it is in the nature of a venditioni exponas; and “when a venditioni exponas under the former practice was issued, and land mentioned in it was sold, another venditioni exponas cannot be issued; and if it does, it is invalid, and the purchaser ge'ts no title.” Smith v. Fore, 10 Ired., 37.
It was so expressly held in this very case when it was before this court at the February term, 1882 (86 N. C., 437). The only ground upon which such a proceeding c.ould be sustained *354would be where the defendant had subsequently acquired such a new estate in the land as subjected it to execution, or had perpetrated a fraud which made the sale void. But here there was no fraud, and the defendant had acquired no title to the land, which made it the subject of execution.
The plaintiff further insisted he had the right to recover, upon the ground that the defendant in this action was the defendant in the execution, and was in possession when the land was sold and at the commencement of this action, and he could not defeat the plaintiff’s recovery by showing title in a third person. It is conceded this is a well established rule. Leach v. Jones, 86 N. C., 404; Wade v. Saunders, 70 N. C., 277.
But to operate as an estoppel, the execution under which the plaintiff has purchased must be valid, and sufficient to confer the power to make the sale upon the officer who undertook to sell; otherwise the attempted sale is ineffectual against the debtor, and this he may show in the action of the purchaser to recover. In such cases the estoppel does not apply. Peebles v. Pate, supra; Smith v. Fore, supra. It was there held that this very exception under which the plaintiff claims title vras invalid, and the defendant was not. estopped to deny the plaintiff’s right to recover.
The only other exception taken by the plaintiff wras as to the refusal of His Honor to admit evidence of the mortgage executed by the defendant to Stephenson, which was offered with the view of estopping the defendant from saying that he, Stephenson, had title to the land by virtue of the sheriff’s deed of December 6th, 1873.
The exception was properly overruled. The plaintiff had no right to take advantage of any estoppel that might have existed between the parties to that deed. “Every estoppel must be reciprocal, that is, it must bind both parties, since a stranger can neither take advantage of any estoppel nor be bound by it.” Co. Lit., 352a; 1 Taylor on Evi., 586.
The only interest which the defendant acquired by the con*355tract with Stephenson was an equity to have the land conveyed to him when the money advanced for its purchase should be repaid, with interest, and that is such an interest as is not subject to be sold under execution. Badham v. Cox, 11 Ired., 456; Moore v. Byers, 65 N. C., 240.
There is no error. The judgment of the superior court is affirmed.
No error. Affirmed.