Den ex dem. Watson v. Mulford

Opinion of the court delivered by Carpenter, J. The case was argued upon the effect to be given to the instrument purporting to be a Sheriff’s deed, made by Sheriff Newell, under the order of Salem Pleas of May Term, 1846. Both parties claim under Minch : the lessor of the plaintiff by deed from him dated 21st February, 1839. The defence is, that the premises in question were previously sold — 504 — by E. Smith, Sheriff of Salem to S. Dare, now deceased ; but although it is said that Dare bid the property off at the Sheriff’s sale, paid {he money, and subsequently became possessed of the premises, no deed from the Sheriff to him can be found. An attempt has been made by Mulford, who claims under Dare, to supply this deficient link in his title by an application under the statute of the Common Pleas of the county of Salem. The statute in substance enacts, “ that if any Sheriff after making sale of any real estate by virtue of an execution, &c. should by death or otherwise become incapable to make a deed for the same, it shall be lawful for any succeeding Sheriff, on receiving a certificate from the Common Pleas of such county, signed by the clerk by order of said court, setting forth that sufficient proof had been made to the court that such sale was fairly and legally made, and on tender of purchase money, or proof of payment, to sign, seal, and deliver to the said purchaser or his legal representative, a deed or conveyance of the lands, &c. so sold; which deed should be as good, valid, and have the same force and effect as if the Sheriff, who made such sale, had signed, sealed, and delivered a deed of conveyance for the same in due form of law.” Rev. L. 434 § 15; Rev. Stat. 664 § 11. It is scarcely necessary to express any opinion as to the form of the order made by the court of Common Pleas, or of the deed executed in pursuance of that order. It may, however, be proper to say, that they appear to have been drawn in haste, and are crude and informal. Everything necessary to authorize the court to make such order, should appear upon its face. The deed when made is a Sheriff’s deed, intended to convey the title of property sold upon execution, it should therefore contain whatever is necessary or proper in a Sheriff’s deed : thus it should recite the execution upon which the sale was made. Rev. L. 433, § 12; Rev. Stat. 662 § 8. But the statute enacts that the deed, when so made, shall be as valid, and have the same force and effect as if' made by the Sheriff, who made the sale. The deed supplies the legal necessity of a formal conveyance. It is when so made, under the circumstances and after the proof called for by the statute, the order and certificate being duly and properly made, that it is to — 505 — have this effect. Proof, therefore, that the sale was fairly and legally made; proof of payment, &c.; that the Sheriff by death or otherwise has become incapable, and that no deed was ever given ; must be made to shew the foundation of the order, and to support the deed. So made, the deed has the same force and effect as if made by the Sheriff, who made the sale, not greater. If a deed had been produced, executed by Sheriff Smith, it would have been necessary to prove that the sale had been made upon some execution issued upon a valid judgment. The execution must not only be recited in the deed, but both judgment and execution must be produced in evidence. Proof that the sale was duly made between the hours prescribed by the statute, after having been duly advertised, may, it is true, be proved by the recital in the deed, when given by the officer who made the sale. Such recital being in the nature of a certificate by a public officer of his performance of official duty, is received as prima facie evidence, and dispenses with other proof. Den v. Morse, 7 Halst. 336; Den v. Downam & Camblos, 1 Gr. 136. Under this deed the same proof must be made, and it can receive no such aid from a recital, for the officer who gave the deed could not certify for the acts of another : nor has it been attempted. In this case it is evident that the necessary proof has not been made. Although proof of a sale, there was none of its fairness or legality. There was no proof that it had been duly advertised ; that it took place between the hours prescribed by law ; that the sale was made to the highest bidder, though perhaps that might be inferred ; or of any of the formalities which the law requires. There was no sufficient evidence that no deed was given by Sheriff’Smith. Not finding any after search, might be evidence to show that the deed, if proved to exist, had been lost; but of itself it cannot be proof that such deed had never existed. The order, certificate and deed, not being supported by the proof required to shew the authority of the Pleas to make such order, were not competent evidence, and the defence, so far as it rests upon these proceedings, fails. If competent evidence, the deed was not accompanied by proof of the legality of the sale, and the result is the same. But it may be said that after proof made of the sale, and pay — 506 — ment of the purchase money, followed by possession by the purchaser and those under him for many years, a possession known to, and acquiesced in by the lessor of the plaintiff, a deed may be presumed. That it was the duty of the Sheriff to convey, and that Dare was entitled to a conveyance, and when the sale, so far as it depended upon the public act and the payment of the price, was made, followed by such possession, it at least is such a case as might be left to a jury to say whether as a matter of fact they did not believe that the Sheriff had complied with his duty and actually executed a conveyance. Indeed, it was part of the argument of the plaintiff’s counsel, for the purpose of shewing that the Pleas had no authority to make the order which that court did make. If any evidence from which a deed can be presumed, this is sufficient evidence of its loss to excuse its production. It is evident that Dare paid the money, and was entitled to the conveyance; that his rights were well known to the lessor of the plaintiff, who for several years held the moiety in dispute under him as his tenant; and that lessor now comes before us with this claim under such circumstances, that I shall be glad to find any safe principle upon which the title of Mulford, who claims under Dare, his father-in-law, can be supported. There are two distinct objects of proof which it is necessary to make in this case on the part of the defendants; the conveyance itself, and as has been already referred to to some extent, that the sale was not only made under due authority of law, but that it was made in the mode prescribed, and accompanied by the formalities of the law. If the deed be shewn, and the authority to sell, after a sufficient lapse of time it may be presumed that all the legal formalities of the sale have been observed. After twenty years acquiescence, by the heirs of an intestate in case of sale by an administrator, and the estate held under such sale, evidence having been given of the license to sell, it was presumed that the sale had been made with the formalities required by law. After a long acquiescence, a legal presumption of the regular exercise of the authority is accepted, instead of proof. Gray v. Gardner, 3 Mass. 399; Knox v. Jenks, 7 Mass. 488. The doctrine was alluded to by Ewing, C. J. in Den v. Morse, — 507 — 7 Halst. 336, where he says, in regard to the presumption that the Sheriff had advertised according to Jaw, that he was not aware of such, unless perhaps in case of an ancient deed accompanied by possession. Indeed, utdess the presumption be aided by some circumstances proper to bo submitted to the consideration of a jury, it can only be after a lapse of considerable time, the period being generally adopted in analogy to the statute of limitations. Thus it was held, that livery of seizin could not be presumed in favor of the feoffee, unless after possession under the deed for at least twenty years; seventeen years being held insufficient. Doe v. Marquis of Cleveland, 9 B. & C. 864; see Bider v. Loveday, cited 1 Vern. 197; 1 Grnl. Ev. § 20; 2 Cow. Phil. Ev. notes, p. 362 et seq. But the presumption here referred to is one of law, and in which the court will take upon itself to instruct that no further proof of such formalities need or can be required. The lapse of sufficient time in such cases raises a conclusive presumption of the facts, that it might otherwise be necessary to shew by direct proof. The rule itself, it has been said, is nothing more than the principle of the statute of limitations expressed in a different form, and applied to other subjects. What may be submitted to a jury as the grounds of presumption to be drawn by them, circumstances from which they may be permitted to infer further facts, in the nature of the case, can ordinarily be limited by no precise period of time; and the principles will apply with the same effect, to the fact of whether a deed has been actually given, as to the presumption of the formalities which should accompany it. What may be sufficient to authorize the presumption of the former, may at the same time sanction the presumption of the latter. Presumption on mere possession for.less than twenty years, would bo to supersede the statute of limitations ; but there may be other striking circumstances which are far from depending merely on possession and time. There is a case in which on sale of mortgaged premises under a power, after acquiescence of sixteen years, it was held that .it might be presumed that the notices of sale had been regularly posted and published. Bergen v. Bennet, 1 Caines Cas. 1, 18. The case may be questioned to the extent to which the principle was an — 508 — nounced as a conclusion of law, though probably rightly applied to the circumstances of the case; and undoubtedly the circumstances should be full and cogent, to raise the presumption, or to authorize it to be submitted to a jury within the period fixed by the statute of limitations. My mind has labored whether it could be submitted in the present case, but I incline to the conclusion that it may, as against the lessor of the plaintiff. Dare bid off the property at Sheriff’s sale in 1827, paid the money, and immediately, or very shortly after, went into possession. He held possession till his death in -1838, when his title and possession fell to his heirs. Subsequent to the sale, he occupied the premises jointly with the lessor of the plaintiff, and a disputo with regard to the profits was referred to, and settled by arbitrators selected by them. Not only so, hut for some time, and until 25th March, 1836, (the period does not, so far as I recollect, appear in the case,) Watson, the lessor of the plaintiff, held Davis’ moiety as his tenant, which tenancy he thus relinquished. Dare died in 1838, his heirs succeed him, but the deed from the Sheriff cannot be found, and then on 21st Feb. 1839 Watson, with all his knowledge of the character of Dare’s title, procures a deed for this same moiety, which he had held under Dare, from the absent and insolvent Minch : such I conclude we may safely style him with the list of judgments and executions against him, which have been given in evidence in this case. Subsequently, this action of ejectment is brought by Watson after the claim of title so acquired. We think under these pregnant circumstances as against Watson, it might be left to the jury to say, whether they would not presume the delivery of the deed by Smith to Dare under the formalities required by law. But it is a question that can only be settled by a jury, and we must therefore send it down again for trial, notwithstanding the agreement upon which the case was made below. The Chief Justice, and Nevius, J. concurred. Verdict set aside and new trial granted. Cited in Den v. Philhown, 4 Zab. 800-805.