Randall

Mr. Justice Heydenfeldt concurred.

The appellant being the owner of a judgment recovered against respondent in the Fourth District Court, caused an execution to be issued to the sheriff of Marin County, who levied on and sold certain lands in said county belonging to respondent. On motion of respondent the Court below made an order annulling and setting aside said sale, and from this order an appeal was taken.

The order itself does not specify any ground on which the sale was annulled; from the record, however, it appears that the motion was heard on affidavits which established the following facts: 1st. That,

at the time, of the levy of the execution, respondent was the owner of personal property, in the county, more than sufficient to satisfy the judgment, and that appellant instructed the sheriff to levy on the personal property, but that respondent claimed the right to designate the property, and at his request the sheriff levied on the land.

2d. That notice of sale was given in the usual manner on the 20th of February, 1855, describing said land as one tract, when in fact it consisted of two adjoining tracts, owned by respondent under separate titles.

3d. That…