Hobson v. Doe, on the Demise of Harper

4 Blackf. 487, 1838 Ind. LEXIS 54

• Court: Indiana Supreme Court
• Decided: May 30, 1838
• Status: Published

Opinion

Sullivan, J.

This suit was originally commenced in the Clark county Circuit Court, and was removed by change of venue to the Circuit Court of Scott county. The cause was tried in the latter Court at the July term, 1829, and judgment was rendered for the plaintiff below. The defendant appealed to this Court, and at the May term, 1830, the judgment of the Circuit Court was reversed and a venire facias de novo award-The cause was again tried in the Scott Circuit Court at the September term, 1835, and judgment was again given for the plaintiff. The defendant has again appealed to this Court.

The lessors of the plaintiff rest their claim to the land on a purchase made at a sheriff’s sale. The bill of exceptions informs us, that on the 19th of August, 1819, one Redman, obained a judgment in the Clark Circuit Court against Hobson, the plaintiff in error, for the sum of 528 dollars; that on the 14th of February, 1820, a fieri facias was issued and levied on the 50 acres of land now in controversy; that afterwards, on the 24th of April, 1820, a venditioni exponas issued commanding the sheriff to sell the land, by virtue of which he did, on the eighth of May, 1820, expose the same to public sale, at which the lessors of the plaintiff became the purchasers. : On the trial in the Circuit Court, the plaintiff offered in evidence a certified copy of the record of the judgment in favour of Redman against Hobson, also certified copies of the fieri facias and venditioni exponas issued on said judgment, and the returns made to them, all under the seal of the Clark Circuit Court. To the introduction of this testimony Hobson objected, but the Court overruled the objection and admitted the testimony. ' The plaintiff also introduced the sheriff’s deed for said land, made to the lessors of the plaintiff who were the purchasers at the sale. He also offered in evidence a copy of the recorded copy of a deed from Ferguson and wife to Hobson for said land, the introduction of which was objected to by the defendant below, but the Court admitted the evidence and the defendant excepted.

The errors relied on are, 1st, That the Court erred in permitting the plaintiff below to introduce as evidence copies of the writs of fieri facias and venditioni exponas, by which the land was levied on and sold, without accounting for the non-production of the originals$ 2dly, That the sale of the land by the sheriff to the lessors of the plaintiff was illegal and wholly void, because he was not at that time authorised to sell the same, for a less price than two-thirds of its appraised value; 3dly, That the Court erred in permitting the plaintiff to introduce as evidence, the copy of a copy of the deed from Ferguson and wife to Hobson, without accounting for the absence of the original, and without adducing proper proof of the execution of said deed.

The remaining point relied on by the plaintiff in error, relates to a supposed error committed previously to the rendition of the former judgment in the Court below. We do not notice it in this opinion, because we have restricted ourselves, in the examination of the case, to the proceedings had sub* sequently to the reversal of that judgment

(1).

The plaintiff in error takes no exception in the argument to the opinion of the Court below, admitting a copy of the record of the judgment in favour of Redman against Hobson in evidence. His objections are to the admission of the copies of the writs and returns upon them, as evidence of the levy and sale of the land. Our statute requires the sheriff to make return of all executions that come to his hands, with his doings thereon; and it is the duty of the clerk to file them amongst the papers of the Court, that they may be preserved and used as evidence whenever needed. When filed, all the objections which apply to the removal of any other record, will apply to their removal. Star Me, in his Treatise on Evidence, part 2, sec. cxi, says, that if a writ be returned it is a record, and may be proved as other records are proved; that is, by an examined copy certified by the officer that has the custody of it, under the seal of the Court. If the writ be not returned, it is not a record, and in such case can only be proved by the production of the original. In the present case, the executions were duly returned, and the copies offered in evidence were properly certified. In actions of ejectment in England, such proof is received. In the case of Ramsbottom v. Buckhurst, 2 M. & Selw. 565, which was an action for use and occupation brought by a tenant by elegit, it was decided that an examined copy of the judgment roll containing the award of the elegit, and the return of the inquisition, was sufficient proof of the plaintiff’s title; and the elegit itself or the inquisition was not required. On this point, therefore, the Court below committed no error.

The judgment in favour of Redman against Hobson was rendered on the 19th of August, 1819, and the law which forbade the sale of real estate on execution at less than two-thirds of its appraised value, was approved on the 18th of January, 1820. That law applied only to sales under judgments rendered after its passage. The first section of the act expressly restricted it to judgments thereafter to be rendered. The last proviso in the second section of the act, forbidding any sheriff or other officer to whom any execution should be directed, to sell real property for a less sum than two-thirds of its appraised value, is to be construed in connection with the context, and, we think, can only properly apply to any execution issued on such judgments as were embraced by the law.

H. P. Thornton, for the appellant. S. C. Stevens, for the appellee.

In reference to the third error relied on, it may be said, that if it had been necessary for the plaintiff below to prove Hob-son’s title to the land, the ’ testimony adduced was perhaps insufficient for that purpose. But this - was unnecessary. The lessors of the plaintiff derived title from Hobson, and he cannot dispute their -title. He cannot set up an outstanding title to defeat the purchaser under a judgment against himself; and in cases where the debtor is in possession of the land, the purchaser is not required, in ejectment against him, to prove that he had title to it. See Jackson dem. Masten v. Bush, 10 Johns. 223.—Adams on Eject. 247. The introduction, therefore, of the copy from the record did no injury to the defendant below, because the plaintiff’s proof was sufficient without it.

Dewey, J. having been concerned as counsel was absent.

Per Curiam.

The judgment is affirmed with costs. To be certified, &c.

Acc. Himely v. Rose, 5 Cranch, 313.—Browder v. M'Arthur, 7 Wheat, 58.—Ex parte Sibbald v. The U. States, 12 Peters, 488, 492.