McCormick v. Fitzmorris

Wagner, Judge, delivered the opinion of the court. This was an action of ejectment brought by the appellant against the respondents for a lot of ground in the city of St. Louis, and was tried by the court without the intervention of a jury. The appellant claimed title by virtue of a sheriff’s deed founded on an execution and sale thereunder against one Doran, the former owner of the premises. The judgment on which the execution was issued was rendered on the 10th day of February, 1862; the sale was made on the 17th day of -April next tliei’eafter; the deed was made on the same day, and filed for record December 9,1863. The respondent was in possession of the lot, and to resist the action of the appellant introduced in evidence a deed of trust from Doran and wife to one O’Brian, as trustee to secure the payment of certain promissory notes due to Morgan Casey, which deed was dated August 11, 1860, and filed for record the same day. Evidence was given showing that the principal note on which this deed was based had been assigned to respondent. Also a deed of trust dated April 19, 1861, and filed for record on the 22d day of April, 1861, from Doran and wife to Timothy Scanling in trust for the respondent to secure the payment of fifteen hundred dollars, money loaned by respondent to appellant. Both deeds conveyed the property here in controversy to the trustees for the purposes specified. The last deed, for the benefit of the respondent, was founded on a note due and payable two years after date. — 31 — Upon default being made in the payment of the note when the same became due and payable, Scanling, in pursuance of the deed of trust, advertised the property for sale, and respondent became the purchaser thereof, and received a deed from the trustee which is dated August 29, 1863, and filed for record on the same day, which deed was also given in evidence. The sheriff’s deed, and the execution by virtue whereof the sale was made, was admitted in evidence without any objection; and the appellant’s counsel requested the court to declare the law to be, that the recitals in the deed of the sheriff of St. Louis county were evidence of the judgment and execution thereon mentioned, no objections having been made. The court refused to so declare the law, and the appellant excepted.' The deed contained the statutory recitals, and the main question is the proper construction to be placed upon the 56th section of the “Act concerning executions”— R. C. 1855, p. 748. That section requires the officer selling real estate to make to the purchaser a deed “ reciting the names of the parties to the execution, the date when issued, the date of the judgment, order or decree, and other particulars as recited in the execution; also, a description of the property, the time, place and manner of sale ; which recital shall be received as evidence of the facts therein stated.” "Without the statute has changed a well recognized and long established rule of law, the decision of the court was unquestionably right; for the doctrine has been uniform in regard to the sale of lands by a sheriff, that his deed is inadmissible as evidence unless the judgment and execution under which the sale is made are produced to show the sheriff’s authority to sell. The burden was alwy as devolved on the purchaser of inquiring into the power and means by which the property was subjected to sale, and he acquired no right or interest to the land when the sheriff sold without legal authority — Den v. Morse, 7 Hals. 331; Bybee v. Ashby, 2 Gil. 151; Wilson v. Comiere, 2 Johns. 280; Vorhees v. U. S. Bk., 10 Pet. 458. — 32 — But the Legislature possessed the undoubted power to change this rule of evidence, and to make the recitals in the sheriff’s deed at least prima facie or presumptive evidence of the facts therein recited. Does the act accomplish this end or object to the full extent contended for ? The section is indefinite, and vaguely framed ; and if literally and stri.ctly construed, would make the recital in the sheriff’s deed evidence, not of the existence of the judgment, but only of the date of the judgment. This strict and rigid construction would leave the law not materially altered from what it was previous to the legislative enactment. We must suppose that the Legislature intended to make a change in the rules of evidence in this particular; and if we can arrive at the true intent and meaning, it is our duty to give the act such interpretation as will carry out that meaning and intent. This statutory provision was inserted in the R. C. of 1845, and was literally copied in the Ark. Dig. of 1848, and has been directly passed upon by the Supreme Court of Arkansas. The case of Hardy v. Heard et al., 15 Ark. 184, is an adjudication precisely in point. Hempstead, J., in delivering the opinion of the court, said: “ The manifest design of the statute was to relieve the purchaser from the necessity of producing a judgment and execution, levy and advertisement ; or, in other words, to excuse him from the duty of proving in the first instance that the law had been complied with ; and leaving it to the party who would contest the sale to establish its invalidity. The statute rests on the fundamental principle that public officers, executive, judicial and ministerial, are presumed to discharge their duties until the contrary is made to appear ; aiid on the further ground that there is no better method of encouraging fair judicial sales, and protecting bona fide purchasers, than to afford all reasonable facilities to enable them to reap the fruits of their purchases.” A dedd in compliance with the statute would of course be nothing more than prima facie evidence; and a deed not — 33 — containing the recitals mentioned in the statute, or not showing a compliance with the law on its face, would be wholly inadmissible as evidence under the statute. This we are inclined to think is the true construction to be placed upon the statute. It merely shifts the onus or burden of proof. It makes the deed prima facie or presumptive evidence of the recitals contained in it, and allows it to be admitted in evidence without any accompanying proofs, subject to be destroyed or invalidated when attacked by a party resisting it. To confine the recital to evidence only of the date of the judgment, is giving it a scope and meaning more narrow and technical than was intended by the law-makers. If it is evidence of the date and existence of the judgment, the judgment must be presumed to be valid till it is impeached. With this view of the proper construction and meaning of the statute, it follows that the instruction prayed for should have been granted. - Upon the trial, the deed of trust from Doran and wife to Scanling, as trustee for respondent, was admitted in evidence without any objection being made or exception taken ; and the appellant asked the court for an instruction, that if' it believed from the evidence in the case that the deed had been materially altered or changed after its execution and delivery, then the verdict should be for the appellant. This instruction the court refused. The alleged alteration consisted in changing the word “ten” to two, so as to make it due and payable two years after date instead of ten years. Several witnesses were sworn who testified, that an alteration had taken place, and that it had been made with a different ink and in a different handwriting from the balance of the instrument ; but when it was made, whether before, or after, or contemporaneous with the execution of the deed, they did not pretend to know. The law in regard to alterations appearing on the face of a written instrument is perhaps not quite settled. Considerable diversity is exhibited by the authorities. It is undoubtedly true that every alteration of a written instrument — 34 — is calculated to arouse more or less suspicion, and detract from its credit; and where the ink and bandwriting are different, it may require examination. In Morris v. Vanderen, 1 Dall. 67, and Prevost v. Gratz, 1 Pet. C. C. 364, it was held that an alteration should be presumed to have been made after the execution of the instrument; but this has been almost universally overruled in this country; as Green-leaf remarks, it is contrary t'o the principles of the law, which never presumes wrong. And as a general rule, if any presumption at all is indulged, the law will presume that the alteration was made before, or at least contemporaneous with the signing of the writing, unless peculiar circumstances of suspicion are patent on its face; and even then the whole question is one for the jury to settle upon all the facts, when and where and with what intent the alteration was made— Mathews v. Coalter, 9 M. 696; Smith v. McGowen, 3 Barb. 404; Cole v. Hills, 44 N. H. 227; Bowers v. Jewel, 2 N. H. 543; Gorch v. Bryant, 1 Shep. 390; Beaman v. Russell, 20 Vt. 205. The instrument in this case was before the court sitting as a jury ; there was no evidence tending to show that any alteration had been made after its execution and delivery, as assumed in the appellant’s instruction ; and the instruction was therefore rightfully refused. The court was in possession of the deed, together with all the facts and cir cumstances surrounding it, and the finding of the court must be deemed conclusive.' The next question is, was the appellant injured by the action of the court in refusing to give effect to the sheriff’s deed, as requested by his instruction; or, in other words, had the deed been admitted to convey all the title which the sheriff could convef by reason of the sale, with a valid judgment regularly produced, would he have been in any better situation ? The respondent was in possession, and if there had been no sale under her deed of trust, it was subsequent to forfeiture, and she would have had such an outstanding title as would have prevented a plaintiff from recovering in ejectment — Meyer v. Campbell, 12 Mo. 603; Walcop v. Mc — 35 — Kinney, 10 Mo. 229; Sutton v. Mason, 38 Mo. 120. But the respondent bad more; she had the possession, and held by virtue of a sale made under a lien which was prior to the judgment; she had, therefore, the better title. The judgment is affirmed. The other judges concur; Judge Holmes dissenting as to the admissibility of the sheriff’s deed without producing the judgment. Judge Holmes