Jane McPherson v. Thomas Hussey, et al.

A Sheriff’s return and deed are prima facie evidence of the sale and of the identity of the land sold and that conveyed. But if the presumption exists at all in favor of deeds executed by a succeeding she-rii5 under the act of 1799, ( Rev ch. 538) it fails when it appears that the successor knew nothing of the facts recited in his deed, but executed it from his confidence in the representations of the purchaser.

This bill was filed in 1824, and charged that a suit was instituted for alimony by his wife against the defendant Ilussey, who then had a large real and personal estate, and that a decree was made in October, 1819, in favor of the wife, on which a sequestration and writ of ji. fa. issued to the sheriff of Guilford, under which he sold four tracts of lands, of which the plaintiff purchased two and took a deed from the sheriff. The bill fiuv ther charged, that Hussey, pending that suit and for the purpose of defeating a recovery therein and any sale that might be made under process upon a decree in it, conveyed or caused to be conveyed to the other defendants all his visible estate, which was without consideration and with full knowlege on their parts of his object: In particular that one Royl had conveyed to Hussey one of the tracts claimed by the plaintiff, but that the deed had not been registered and Royl, at the request of Hus-sey and the. defendant Hoskins, tool?, up and destroyed *324that deed and made a new one to Hoskins : And that one Bruce had sold to Hussey the other tract of land claimed by the plaintiff, for 581200, and was to convey it when the purchase money should be paid ; that Hus-sey paid g 900 of it and procured Bruce to convey to Hos-kins, who paid the residue of the price, but did so out of the funds of Hussey and has since conveyed part of the land to the defendant Hunt with the privity of Hussey and without consideration. The prayer was for the conveyance of the two tracts, (which are described in the bill,) from such of the defendants as have the legal title, by which the plaintiff was prevented from proceeding at law and for an account.

The answers denied the fraud and set up various de-fences and much testimony was taken to the several points; but it is unnecessary to state them or the proofs as one of the points made in the argument of the case was thought clearly to be against the plaintiff.

The answers did not admit the plaintiff’s title, but denied it in general terms and put her to the proof of it.

In proof of it, the plaintiff offered in evidence the decree in the suit,of Hussey and wife and the writ of execution issued on it in October, 1819, on which the sheriff made ív return to April term, 1820, that it was “ levied on 135 “ acres of land in one tract, 300 in another tract, 300 “acres in a third tract and fifty acres in a fourth tract) “ the title being disputed sold for j§ 42 paid in office” signed “A Hanner sheriff by J. Wheeler, deputy sheriff.” She further exhibited a deed, dated 17th February, 1823, made to her by William Jlrmjield, then the sheriff of Guilford, for the two tracts of land claimed in the bill and in the deed described by metes and bounds and stated in the deed to contain, the one 240 and the other 33 acres.

The deposition of Jlrmjield was taken by the plaintiff to other parts of her case, and to an interrogatory from the defendants on this point, he answered that the plaintiff brought the deed to him already written and that he executed it without her showing him any document or evidence upon the subject, and without any per*325sonal knowledge of bis own or lier rig]its, or of the land described in the deed.

From the record of the alimony suit, it appeared that on leave granted in October, 1825, the return on the execution was amended by Wheeler, by stating amongst other things, “ that it was levied on a tract of land, of “ 300 acres more or less, or a part of a tract of land, “on Reedy Fork adjoining Charles Bruce and others, “ and that Jane McPherson became the purchaser of the “tracts on Reedy Fork at $11, and paid the purchase “ money to him.”

Winston for the plaintiff.

Mash for the defendants.

RuefiN, Chief-Justice

after stating the pleading and proofs as above, proceeded as follows :

The objection to the plaintiff's case is, that the proof of her title is insufficient.

It is the genera] understanding and course to receive the return of the sheriff, and his deed, as prima facie evidence of the sale, and that the land conveyed is that sold. It is not intended to question the propriety of this practice. It rests upon the notion, that the deed and acts of officers import verity, because the officer is supposed to have full means of personal knowledge, and that he does know the facts affirmed by him, and that his affirmation is true, since he is under the obligation of an oath— Whether this is to be carried to the extent, that the recitals in the deed of a succeeding Sheriff, of the acts of his predecessor, is evidence of those acts, this case does not call upon us to say; for, at all events, the presumption cannot stand against direct proof, that the new Sheriff knows not, whether what lie has said be true or false.— Hero the Sheriff, who made the deed, himself proves, that he had no knowledge of any one of the material facts constituting the plaintiff’s right to call for a deed for the land conveyed to her ; and that he made the deed upon her own word only, that she purchased at all and purchased this particular land. The truth of those facts can no. longer be inferred from the deed, since the whole *326ground of inference is.destroyed by the express evidence. It is then necessary that the plaintiff’s purchase, anil the identity of the land sold and that conveyed, should ho proved hy evidence independent.of the Sheriff’s deed. The return on the execution does not establish them. As at first made it furnishes nothing upon the subject. Admitting that five years after the return, and the expiration of the Sheriff’s office, and after the new Sheriff had made a deed, the deputy who executed the process could amend the return, and that as amended it would be evidence between these parties ; yet in this case it describes the land which the plaintiff is therein stated to have purchased, in terms so extremely vague, that it is impossible, hy comparing that with the description in the deed, to ascertain whether the land he the same or not. It would be very unsatisfactory to decree upon such very uncertain proof. Indeed, there is nothing to which that faith can he yielded, which entitles it to the name of evidence; although the fact is one, which, from its nature, is susceptible of clear and direct proof by the testimony of the person who attempted to amend the return, and of others.

If however, the identity of the land were established, there is another radical defect in the plaintiff’s case.— This suit is not to obtain a conveyance from the Sheriff. He is not a party to it. It is against other persons; to the relief against whom a valid deed from the Sheriff is essential. It is her title to the property which she seeks to recover. Such a deed she alleges in the bill she has, and exhibits it. It is not from tiie Sheriff who made the sale, but from his successor.

It is an indulgence to purchasers to allow them to get deeds from a Sheriff, after his office has expired, or from a succeeding Sheriff. The law originally contemplated, that the deed would be immediately made hy the officer who made the sale, and while under the obligation of his oath of office. The act of 176", ffíev. c. 85,) was the first departure; and from an apprehension of that danger of fraud, which is apparent in this case, that act is confined to anterior purchases, as is also that of 1784. CBcv, c. sas, s. 10.) The act of 1799, (lieu. c. 558,) *327is the first which embraces future cases ; anil that is indicative of a remaining caution in the Legislature against imposition. By it the Sheriff who sold, as best knowing the truth of the case, is, although out of office, to convey, if he he living and in the State. The succeeding Sheriff personally ignorant of the facts, is authorised to do so only in cases of extreme necessity, when there is no other person in being, capable of conveying or compellable by our courts to convey — that is, where the former Sheriff is dead or has removed out of the State. The power to the successor is a special one and strictly limited. The policy on which it is formed, not less than the limitation itself, forbids the extension of the pet by construction beyond its words.

Here there is no evidence, that at the time of making the deed, Banner fiad cither died or removed or has yet done so. There is not even such a recital in the deed itself, if that would do. Thc'deed is therefore a.nullity, and the bill.must be dismissed with costs.

Prr Cusí asi. — Declare that the plaintiff has not proven, that the land described in the bill and in the deed to her in the bill mentioned, dated, &c. is the same land which, it is alleged in the bill, she bought at Sheriff’s sale; and declare further, if it be the same, that Jlrmfidd, who executed it, was not the Sheriff who made the said sale, but was a successor to Banner, who did make the said sale; and declare that the said deed is void, because the plaintiff hath not chai’ged or proved that the said Banner was dead, or had left the State, and therefore dismiss the bill with costs.