Board of Education v. . Gallop

Seawell, J. The deed of Sheriff Carmine to M. B. Simpson is a vital and necessary link in the plaintiff’s title and its validity depends on a sale under a live execution in the hands of the sheriff as provided by law. It is incumbent upon the plaintiff offering such a deed when challenged in an action involving the title, to support it by evidence of these *604 facts. Byrd v. Collins, 159 N. C., 641, 75 S. E., 1073; Avery v. Stewart, 134 N. C., 287, 46 S. E., 519; Isley v. Boon, 109 N. C., 555, 13 S. E., 795; Person v. Roberts, 159 N. C., 168, 74 S. E., 322; Sinclair v. Worthy, 60 N. C., 114, 115; Thompson v. Lumber Co., 168 N. C., 226, 84 S. E., 289. Tbe continuous history of variations in early decisions will be found in 36 A. L. R., Anno., p. 1007 (seq.); however, the important case of Thompson v. Lumber Co., supra, is not listed. The attack on plaintiff’s proffered muniment of title, based on the want of such an execution, does not go to its irregularity but to its complete invalidity. This case, then, hinges upon the legal effect of the so-called “second execution,” the paper admitted after very extensive controversy, and virtually deprived of effect by the instructions given to the jury upon the issues determining the plaintiff’s title to the lands. The plaintiffs do not contend that this paper writing was in existence at all until after the sale of the land. They do contend that the court, and the jury, may draw from it the inference that it was written and signed by Aydlett, Clerk of the Superior Court, ex mero motu, to supply a formerly existing execution which had become lost, and that this was within his official power and discretion. It seems to be agreed that the “second execution,” as it has been called, was filled in in the handwriting of Mr. Aydlett and bears his proper signature. There is no evidence clehors the document itself as to whether he wrote it up ex mero motu or at the insistence of some other person; and there is no evidence dehors the paper that there was ever any such execution issued or lost which might be supplied either ex mero motu or otherwise by the clerk. In fact, the evidence, as far as it goes, is contra. The evidence tends to show that there was no entry upon the records of the clerk as to its issue (G. S., 1-310), nor endorsement of the clerk on the day of its issue, none by the sheriff of the day he received it and the day of execution (G. S., 2-41), nor entry of any return on the judgment docket (G. S., 1-321), all of which were statutory requirements in force at the time of its alleged issue and return. The paper which it is suggested is a substitute for a lost original, which original should have been thus charted through its course by the records, is not supported by any return upon it or accompanying it, or any of the notations which we have mentioned. It rivals the Flying Dutchman, sailing without a log — -just coming out of the nowhere into the here. The evidence seems to disclose that it made its first appearance amongst the papers in the judgment roll very recently, and some 16 years after the sale. *605 If indeed the so-called “second execution” could be an exact replica of an original which was lost and which the clerk sought to replace, it falls far short of being a serviceable substitute. If we might conceive of this paper lying in the clerk’s office in the judgment roll all this while as an original, none of the presumptions which the appellants desire to attach to it can be indulged. An execution is of no effect until its issue and delivery to the sheriff. McKeithen v. Blue, 149 N. C., 95, 62 S. E., 769, 128 Am. S. R., 654. The law, as we have seen, has provided a method by which this important fact may be evidenced; there is no evidence dehors the record of the issue of the execution;, and there is nothing in the challenged paper itself, supposing it to be a substitute, which would raise a presumption or inference of such issue. In other words, the document at last appearing raises no presumption that it was ever issued or acted upon. It is now the settled law in this State that the recitals in a sheriff’s deed other than those which pertain to some of his own acts, are only secondary evidence in so far as establishment of the existence of the judgment and the execution are concerned. Thompson v. Lumber Co., supra: “The deed was introduced in evidence but the judicial proceedings were not produced, the sheriff relying upon the recitals in the deed to prove their existence and contents. It is well established that the recitals in a deed executed pursuant to a judicial decree, or by a sheriff upon an execution sale are evidence of the facts recited, but they are only secondary evidence and before being admitted for that purpose the loss or destruction of the original record must be clearly proven. Isley v. Boon, supra; Person v. Roberts, supra.” In Byrd v. Collins, supra, the Court quoted with approval Avery v. Stewart, supra; “If the instrument is lost, the party is required to give some evidence that such a paper once existed, though slight evidence is sufficient for this purpose; and that a bona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found . . . the question whether the loss of the instrument is sufficiently proved to admit secondary evidence of its contents is to be determined by the court and not by the jury.” From Person v. Roberts, 159 N. C., 168, 74 S. E., 322, we quote: “The act of issuing an execution is not that of the sheriff hut of the clerk and can easily be proved by the execution itself, or in its absence, if lost, by the record. . . .” *606 Certainly, the recitals are neither conclusive nor effective against the record itself. Powell v. Turpin, 224 N. C., 67, 69, 70, 29 S. E. (2d), 26. Appellants urge that a presumption of the issue of a prior execution was raised by G. S., 1-305, making it the duty of the clerk to issue successive executions within six weeks of the return date of the first, this on the principle that officers are supposed to have performed their duties. The force of this suggestion is somewhat blunted by the fact that the clerk is not bound to issue any execution at all unless the fees are tendered to him. Bank v. Bobbitt, 111 N. C., 194, 16 S. E., 169. There is no evidence that any such fees were paid or tendered. The original execution issued in this case on 18 December, 1930, and now in the judgment roll, was no authority for the sheriff in making the sale and executing the deed. Under the law as it then existed, requiring return not less than 40 nor more than 60 days from the date of issue (C. S., 672) this execution was “dead in law.” More than 70 days had expired when the sale was made. Gardner v. McDonald, Sheriff, 223 N. C., 555, 27 S. E. (2d), 522; Jeffreys v. Hocutt, 193 N. C., 332, 137 S. E., 177. A sale made under it would, therefore, be void. We do not find it necessary to consider objections and exceptions to the instructions given by the court upon the issues relating to the defendants’ title since the plaintiff must fail in the assertion of his own title. Error in the latter respect, if there is such, cannot be material to the result. In the record we find No error.