Claflin v. Robinhorst

Lyon, J. The defendant claims title to the land in controversy under the judgment debtor, and in his answer admits that the latter was the owner of the land until a short time before the Berliner & Bruno judgment was docketed. The judgment debtor being the common source of title, no proof of his title was necessary. Sexton v. Rhames, 13 Wis., 99. Hence it is quite immaterial whether the conveyances read in [486] evidence for that purpose did or did not prove such title in him. They may be stricken from the case without injury to the plaintiff or benefit to the defendant. ITad the plaintiff introduced in evidence the sheriff’s deed and rested his case upon it, he would doubtless have proved thereby, prima, fade, that he had acquired the interest of the judgment debtor in the land in controversy. Laws of 1869, ch. 40 (Tay. Stats., 1610, § 123). He did not choose, however, to rely upon his deed, but attempted to prove the regularity of the proceedings preliminary thereto. By taking upon him-self the burden of showing such proceedings regular, and that his deed conveyed to him the title of the judgment debtor, he relieved the defendant from the burden of showing the contrary. Eor it must be presumed that the plaintiff' has made the best case he can for himself, and has proved all the preliminary proceedings which ho deems material to his case. Hence, if the evidence offered by the plaintiff failed to show that all material steps in the proceedings preliminary to the deed were taken, or that some of them were materially irregular, or, all the proceedings being regular, if they did not authorize the sheriff to convey the land to the plaintiff’, the nonsuit was proper. A kindred rule has been applied by this court to averments in pleadings. Teetshorn v. Hull, 30 Wis., 162; Kellam v. Toms, 38 id., 592. The principle seems to be, that when a statute creates a presumption of facts in favor of a party, on proof of certain other facts, and such party, instead of availing himself of the benefit thereof, attempts to prove the presumed facts, he must prove facts sufficient to constitute a cause of action, unaided by the statutory presumption. The plaintiff, having rejected the benefit of the statutory presumption in favor of his deed, was, under the above rule, bound to show, 1. A valid judgment and execution; 2. Some proceedings under the execution during its life, looking to a sale of the land, as, for example, a levy, or publication of notice of sale (Wood v. Colvin, 5 Hill, 231); 3. The sale on [487] due notice; and 4. The due assignment to the plaintiff of the interests of all his copurchasers. Such proofs being made, the sheriff’s deed would be received in evidence, and would prove the plaintiff the owner of the interest of the judgment debtor in the land in controversy. Did the plaintiff make such proof ? "We think not. 1. He failed to show that anything was done during the life of the execution towards a sale of the land. It is quite true, as argued by the learned counsel for the plaintiff, that if the notice of sale required by law was published, the publication must have commenced during the life of the execution. But, for reasons already stated, we cannot presume, in the absence of proof, that such notice was published. Neither is the publication of notice of sale sufficiently proved by the recitals on the subject in the deed. Jackson v. Shepard, 7 Cow., 88; Anderson v. James, 4 Rob., 35. The case of Woodman v. Clapp, 21 Wis., 350, is not authority to the contrary. There the county purchased land at a tax sale, and its proper officer indorsed and transferred the certificate of sale. In due time a tax deed was executed by the county to the holder of the certificate, containing a recital of the assignment of the certificate. It was held that the county, and the original owner of the land conveyed by the tax deed, were concluded by the recital. It is plain enough that the county might be estopped by the recital in its own conveyance, or rather by the conveyance itself; but the principle upon which the' estoppel extends to and binds the original owner of the land is not so apparent. Here we have no such case; for the distinction is obvious between a tax deed by a county to its own assignee of the certificate upon which the deed is executed, and a conveyance by a sheriff upon -an execution sale. Besides, in the present case the conveyance was not^ executed by the sheriff who made the sale, and the recitals therein as to what was done by the latter is little better than hearsay testimony. Hence, we conclude that it does not sufficiently appear that any steps [488] were taken for the sale of the land during the life of the execution. 2. There was no proof that notice of sale was given or published as the law requires. This goes to the validity, of the deed. The reasons why such notice cannot be presumed, have already been stated. 3. The power of attorney to Treat was not executed by Mellen and Miller, two of the purchasers, in person, and it does not appear that either of them authorized Donaldson to affix his signature to the instrument. Hence, the matter stands as though their names were not on the instrument, and their interest in the purchase has not been divested. The sheriff had no authority, therefore, to execute a conveyance to the plaintiff alone, but only to the plaintiff, Mellen and Miller. But it is argued that this is quite immaterial to the defendant, and there are dicta in some of the cases to the effect that the judgment debtor cannot be heard to say that the sheriff had executed a conveyance on an execution sale to a person not entitled thereto. We should hesitate to follow those dicta were the judgment debtor the defendant here; for it seems to us that they violate the elementary rule that the plaintiff in ejectment must recover upon the strength of his own title. But, however that may be, we have seen no case which- holds that a defendant in ejectment, other than the judgment debtor, may not attack the sheriff’s deed on the ground that it is not executed to the purchaser 'at the execution sale or his assignee. The contrary doctrine runs through all the cases. Were all other preliminary proceedings regular, this infirmity in the deed would be fatal to it. It follows from the foregoing views that the nonsuit was properly ordered. By the Oowrt. — Judgment affirmed.