Johnson v. Berg

Hart, J. (after stating the facts). Counsel for the defendant assign as error the ruling of the court in excluding the offered testimony of Daniel and Hopson from the jury. In Hightower v. Hamlin, 27 Ark. 20, the court held that the sale of real estate under an execution after the return day is without authority and void. Counsel for the defendant claim that the testimony of Daniel and Hopson tends to show that the execution sale under which the plaintiff claims was had after the return day of the writ of execution. The record shows that the execution was returnable on the 21st day of June, 1877. They insist that the excluded testimony tends to show that the execution sale took place on the 24th day of June, 1877, and that therefore the court committed prejudicial error in excluding the testimony from the jury. The testimony does not tend to show that the execution sale in question was held on the 24th day of June, 1877. The testimony of Hopson was hearsay merely. He did not take the deed in question from the deed record, and of course could not know whether or not the deed was correctly copied upon his abstract books. Daniel testified that he copied the deed in question from the deed record, and that if there had been any change from the 24th day of June, 1877, to the 21st day of June, 1877, he would have noted that fact upon his abstract books. The deed, as introduced in evidence, recites that the execution sale was had on the 21st day of June, 1877. Hence the testimony of Daniel, if accepted as true, would only show that at the time he examined the deed record, the record showed that the deed was executed on the 24th day of June, 1877, and after giving full effect to his testimony it could only be said that at a subsequent time the execution deed was corrected so as to show that the sale took place on the 21st day of June, 1877, instead of the 24th day of June, 1877. The return of the sheriff, who made the sale, and his advertisement of the sale, both show that the sale took place on June 21, 1877, and the presumption is that the deed was corrected so as to show the facts. The excluded testimony of Daniel would amount to no more than to show the deed was corrected after he had examined the record in 1906 or 1907. • His testimony would not show that the sale was made on that day. The defendant had the right to show that fact by witnesses who had knowledge of the facts, or of facts tending directly to establish the main fact, but he could not do so by showing a correction of the execution deed so as to recite that the sale was made on June 21st, instead .of June 24th, since such testimony was not sufficient for that purpose. No other testimony was offered by the defendant on this point, and since the excluded testimony was not sufficient to establish the fact that the sale was made on the 24th day of June, 1877, being a day after the return day of the writ, prejudicial error was not committed by the court in excluding from the jury the offered testimony. No other assignment of error is relied upon for a reversal of the judgment, and it follows that the judgment must be affirmed.