Curlee v. . Smith

Ashe, J. The errors assigned by the defendant for a new-trial were, the admission in evidence of the deed of the sheriff under its recitals, to prove the sale and the execu *177 tion under which it was made; the entries on the execution and minute docket of the county court of Union county; the declarations of the defendant; the instructions given by His Honor to the jury, and his refusal to give those asked by the defendant. AVe think the sheriff’s deed was competent for the purpose for which it was introduced ; and as incident thereto, so were the entries on the execution and minute docket of the county court. It is incumbent on every one who purchases land at a sheriff’s sale and claims title thereto through a deed of the sheriff, to show, if he be the plaintiff in the judgment and execution, a judgment, execution and sale; but if he be a stranger to the judgment, then he need not show a sale and execution, in the hands of the sheriff authorizing him to sell, issued from a court of competent jurisdiction. Rutherford v. Raburn, 10 Ired., 144. And the recitals in the sheriff’s deed are prima facie evidence of the sale and the execution, because, as said by Chief Justice Nash in Hardin v. Cheek, 3 Jones, 135, “it is the act of a public officer in discharging his official duties, reciting how and by what authority he had made the conveyance, nevertheless open to proof that the fact did not exist.” To the same effect is the more recent case of Rollins v. Henry, 78 N. C., 342. But here, it is insisted by defendant’s counsel that the sheriff had gone out of office, and at the time he made the deed he was not acting under oath; but the execution was proved to have been lost, and in such a case it is competent to resort to secondary evidence to prove the execution and that it was in the hands of the sheriff, or the person authorized to make the sale under it, at the time of the sale. The Code, § 1267, provides that where a sheriff has made a sale of real or personal property while in office, and goes out of office before executing a proper conveyance therefor, he may do so after his term of office expires. And when he *178 is dead or removes from the state without executing the conveyance, his successor in office may do so. The recitals in a deed made by a successor in the office of sheriff, are held not to be evidence of the levy, sale, execution and judgment, because he is not under oath, and he professes to state only his opinion from information derived from other sources than, his own rknowledge. It is only hearsay. It differs from the return of a sheriff upon a writ, because that is upon the personal knowledge of the officer and is in the performance of a duty which he has sworn to perform. Edwards v. Tipton, 77 N. C., 222; McPherson v. Hussey, 2 Dev. Eq., 323. The recitals in a deed made by an ex-sheriff are certainly entitled to more consideration than those in a deed made by a successor. They are not obnoxious to the objection of being hearsay, for they are made by one who has full personal knowledge of what he states. And when they correspond with his return of the execution, which is made at a time when he is in possession.of the office and acting under the sanction of an oath, the obligation of which continues pro hac vice, we can see no reason why they may not be received in evidence, especially in a case like this, where the execution has been lost and recourse is had, from the necessity of the case, to secondary evidence; and to that end, the plaintiff introduced the minute and execution docket, and the sheriff’s “return ” of the execution, as set out in' the statement of the facts. The return of ex-sheriff Austin would not have been found on the execution docket unless it had been his return on the execution. The execution and return upon it, when returned to court, became records of the court; and the return duly made by a sworn officer upon process, in relation to facts which it is his duty to state in it, as to those facts, is conclusive as between parties and privies, but only prima facie evidence as to all other *179 persons. Freeman on Executions, 365. But in this state, such “ return ” being of the acts and doings of a ministerial officer, although required to be returned into a court of record, are only prima facie to be taken as true ánd are not conclusive. Patterson v. Britt, 11 Ired., 383; Smith v. Lowe, 5 Ired., 197. The return then is prima facie evidence of what it states; and taking all the evidence together, offered by the plaintiff, we are of the opinion it was sufficient to supply the lost record, and establish the fact that there was a writ of vendi-tioni exponas issued to the sheriff in the case of H. M. Houston against Calvin S. Austin, and that he sold the land in controversy, and that C. B. Curlee became the purchaser. This would put the title in the plaintiff if Bryan Austin had title. The defendant says he had no title; and the plaintiff replies, it makes no difference whether he had or not, the defendant claims under him as well as the plaintiff, and is estopped to deny his title; and to establish that position he relied on the deed of J. Marshall, administrator of Tempy Austin, to the.defendant, conveying to him the land in controversy as the property of‘Tempy Austin : and. to show that she claimed under Bryan, he referred to the will of Bryan and John W. Austin. By the will of the latter, she took a life estate, remainder to Calvin Austin; and John claimed under the will of Bryan. It is true that when Marshall undertook to sell the land as the property of his intestate Tempy, his deed in fact passed nothing, for she had only a life estate, and was dead. But the defendant received a deed from Marshall as her administrator purporting to sell the land- as hers, and by doing so, he is estopped to deny that' Tempy, and Bryan under whom she claimed, had title to the land. Ives v. Sawyer, 4 Dev. & Bat., 51; Vason v. Allen, 6 Green1., 243; Kimbal v. Kimball, 2 Greenl., 226; Smith v. Ingold, 13 Maine, 284 Thomas v. Kelly, 1 Jones, 375. *180 There is no force in the exception taken by the defendant to the court’s admitting the evidence in regard to the declarations of the defendant. They are always competent when relevant. His Plonor could not have given the first instruction asked for, as there was no evidence offered by the defendant, and there could have been no preponderance of evidence in the case. The second instruction asked has already been considered. If both parties claim under Bryan Austin, it could make no difference whether Bryan had title or not. The third instruction has been considered and disposed of by what we have had to say in regard to the estoppel upon the defendant, by reason of his receiving a deed from the administrator of Tempy Austin. The fourth instruction asked could not have been given ' upon the facts as developed in the case. The fifth was properly refused. The Code, § 2174, requiring certified copies of wills to be recorded in the office of the superior court clerk in the county where the land lies, refers only to wills'proved after the first of November, 1883. The statute is prospective. There is nothing in it that tends to show it is retroactive. We cannot believe the legislature intended that old wills made eighty or a hundred years ago, devising lands in different counties, should be recorded in the county where the lands lie. There is no error. The judgment of the superior court is affirmed. No error. Affirmed.