Edwards v. . Tipton

Rodman, J. The Revised Code ch. 37, § 30, (Bat. Rev. ch. 85, § 27,) enacts, that when any Sheriff or Coroner sells *224 land and goes out of office, or dies, &c., before making a conveyance therefor, his successor in office shall execute the conveyance, and such conveyances shall be as valid as if* made by the officer who made the sale. Of course the successor can make a deed for only what his-predecessor sold, and not for any thing he did not sell. He can never have an official, and seldom a personal knowledge of what it was that his predecessor did sell, and he must necessarily obtain his information on that point from the-statements of others. But his opinion derived from such statements cannot be conclusive either upon parties or strangers to the execution. If a Sheriff should refuse to execute a deed tendered to him by one who alleges that he purchased a certain piece of land at a sale made by a former Sheriff, the purchaser may apply to the Court under whose-process the sale took place, 'and in a proper case, obtain a. mandamus or rule on the Sheriff to execute the deed. In this case the Court would necessarily receive evidence to sustain the facts alleged. Isler v. Andrews, 66 N. C. 552. If the Sheriff, should voluntarily execute the deed tendered, it must be in like manner competent for a Court on the-trial of an action putting the title to the land conveyed in. the deed in issue, to hear evidence as to what, was actually ‘sold. In Harriss v. Irwin, 7 Ire. 432, evidence was admitted to» show that the alleged purchaser had not paid the purchase-money to the Sheriff who sold, and the deed of the succeeding Sheriff was held void. In Jackson v. Jackson, 13 Ire. 159, evidence was received to show what land the Sheriff had actually sold, and his return of levy was admitted to contradict the description in his deed. The succeeding Sheriff executes a deed under a power-given to him by the statute, and his power is limited by *225 pertain conditions. If these do not exist, his power does not, and his deed is void as to the excess. The Judge was of opinion that the deed of the Coroner, under which the defendants claimed, could not be contradicted fas to what was sold by the old Coroner) by his return to the execution, and told the jury that if the deed ■covered the land in dispute they must find for the defendants. In this we think the Judge erred. ' We are not aware of any case in which the recitals of a Sheriff’s deed have been held even prima fade evidence of the judgment, execution, levy and sale, or other facts recited, except under exceptional circumstances. In Owen v. Barksdale, 8 Ire. 81, it is said that they are not, unless the deed is ancient, and possession has been held under it. The return of a Sheriff is, as will be seen, evidence of the facts stated in it. But whether the ■deed of a Sheriff who makes a sale, is evidence as to what he sold, or not, it seems clear on reason and principle, that the deed which a Sheriff makes upon a sale made by his predecessor — in this case fifteen years before — is not. McPherson v. Hussey, 2 Dev., Eq. 323. It is operative by virtue of the statute to pass the title to what was sold, but it is not evidence what that was. Its recitals are only hearsay. The Sheriff" does not profess to have any personal knowledge of their truth. He is not under oath himself, and he professes to state only his opinion from information whose sources are unknown to us, and which could not have been under oath. It differs from the return of a Sheriff upon ■ a writ, because that is upon the personal knowledge of the officer; is in the performance of a duty which he has sworn to perform faithfully ; and if the return be false he is liable to a penalty. For these reasons a return is prima facie evidence of what it states, and cannot be collaterally impeached, although it may be corrected so as to speak the truth, on ^application to the Court in which it is. The return of the *226 Sheriff who sold — if be made one — is evidence, and probably in a collateral proceeding, the only evidence of what he sold. Wharton Ev. § § 833-986. McPherson v. Hussey, 2. Dev. Eq., 323. But that question does not arise here, and we leave it undecided. In this we think consisted the error of the Judge. He held that the • description in the deed-controlled that in the return, in determining what was sold whereas, the description in the return should have guided the Coroner in making his deed. There was, however, in the return a latent ambiguity. It described the land levied on and sold as “two hundred acres, more or less, on which-William- Edtoards noto lives,” &c. ’ To explain this ambiguity the plaintiffs were allowed to prove that “William Edwards-never himself'” lived on the piece of land in dispute ; but the Judge by his instructions deprived them of any benefit-from this testimony. It was admissible to apply the description to the thing sold. There are many authorities to-this effect. For this purpose it was admissible to prove the-number of acres in each piece; whether the two pieces had .been bought and held by Edwards as one tract, or as two whether he listed them for taxation as one, or as several ? whether he abandoned possession of the piece immediately' after the sale, and the purchaser entered, &c. Jackson v. Jackson, 13 Ire., 159; Judge v. Houston, 12 Ire, 108; Bradshaw v. Ellis, 2 D. & B. Eq., 20; Rogers v. Brickhouse, 5 & Jones Eq., 301. Error. Per Curiam. 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