Lessee of Armstrong v. McCoy

8 Ohio 128

• Court: Ohio Supreme Court
• Decided: December 15, 1837
• Status: Published

Opinion

Judge G-rimke

delivered the opinion of the court:

If the evidence in this case related to a deed from one individual to another, there would be some reason to doubt whether it was sufficient to show a legal title in Conger. But it is, in this instance, combined with other circumstances which contribute to l’aise a presumption, exceedingly strong, that such a deed was actually executed. A distinction must be made between those cases where a deed, not produced, is the commencement and end of title, in an individual, and those where the deed, having for its foundation a train of judicial proceedings, is only the consummation of that title. In the first instance, the testimony to supply the production has no necessary connection with the deed; in the second, it may constitute the whole authority for its execution, and may be evidence of a higher nature than the deed itself. In this case, there is proof of the sale, of the return by the'sheriff, of the order of confirmation, and that the sheriff made the deed. We think that these facts, connected with the testimony of the witnesses, are sufficient to authorize the presumption that a valid deed was made by the sheriff to Conger. This case is not stronger than that of Jackson v. Woolsey, cited by the counsel for the plaintiff. In that case it was decided that commissioners in partition, appointed to mak , a deed, might be presumed to have made one, pursuant to the order of the court. Nor is this case so strong as the case of Tyburr v. Slade, 4 Durnf. & East, 682, where, trustees having been directed to convey to a devisee, on his attaining twenty-one years, it was held that a conveyance might be presumed any time afterward.

It is objected, to the sheriff’s deed to Fox, in the case against Conger, that it does not recite all the executions that issued upon the judgment before the sale was effected. This objection is not maintainable. All that is necessary is, that the deed show that the sheriff acted under the execution. This question has been repeatedly raised in New York, and it has been uniformly ^decided in favor of the sheriff’s deed. 10 Johns. 381; 18 Johns. 7. It is true our statute declares that the executions shall be recited, and it is often very difficult to distinguish between those ceremonies which are directory to the officer, and those which are essential to the title. If any one- general rule may be laid down, it is, that every prerequisite which can. be considered as constituting the foundation of title, is essential and indispensable, and that whatever does not partake of that character is merely directory. The word récite is used in the statute long after it had obtained a technical, legal meaning, when applied to deeds. I refer to the well-known maxim that a recital is not a neccessary part of a deed.- But it is unnecessary to decide more than that the recital, which is contained in this deed, showing, as it does, a clear and undoubted authority for its execution, is sufficient. Judgment for the plaintiff.