Conger v. Converse

WRifiHT, C. J. As both parties claim under the same third person, it was unnecessary for the plaintiff to prove title in Bullis. 2 Greenl. Ev. 307, and authorities there cited. By the Code a sheriff’s deed is presumptive evidence of the regularity of all previous proceedings, and can be given in evidence without preliminary proof. (Section 1948.) The deed seems to have been thus received in this case. If the plaintiff had here rested his case, and no other testimony had been introduced, the judgment must have been in his favor. For some purpose, however, it appears that he proposed to prove the regularity of the proceedings, and sought to introduce preliminary proof, or proof to sustain the deed. [557] In this attitude of the case, therefore, we are called upon to determine whether the testimony offered was admissible. The general rule is, that where a record is shown to be lost its contents may be proved by any secondary evidence. If that offer discloses the fact that other and better evidence exists, then such other and better evidence must be produced. And in the case of writs, if they cannot be found after due or diligent search, their contents may be proved, like other documents, by secondary evidence. (1 Grreenl. Ev. sections 84, 509, 521.) If from the nature of the case it is manifest that a more satisfactory kind of secondary evidence exists, the party will be required to produce it. Should it not be thus disclosed, however, the party obj ecting to that offered, must at least show that there is better. This is said to be the doctrine in this country as deduced from the various authorities. (Note 2, section 84, 1 Grreenl.) When it is said that neither of the executions could be found, and that the records did not show that any had been issued or returned, (and these facts are stated in the bill of exceptions,) we think there was a sufficient foundation laid for letting in the parol testimony. Eor if it be .granted that proof of the loss of the execution would not warrant the introduction of parol proof of their contents, because from the nature of the case better proof must exist, to-wit, the entries in the “judgment docket,” of the date of the issuance and return of said writs, or entries in the “ sale book,” (Code, section 145, clause 284,) we say if this be granted; the rule relied on can have no application in the present case from the fact that it appears that these records did not show any such issuance or return. So to speak, then, there was no such higher secondary evidence and the parol proof was improperly rejected. The fact that the certificate and deed were signed by different persons, was no ground for excluding the certificate. The sheriff in office at the time the certificate is produced and deed demanded, is the proper officer to make the deed, and not the one who made the sale and whose term of office [558] lias expired. The term “ sheriff,” as found in section 1946, applies to the office and not to the person. If parol evidence could be received of the issuing of the writ and the sale, much more clearly would the certificate of the sheriff be evidence as tending to prove the sworn facts. Judgment reversed.