Draper v. Bryson

Gamble, Judge,

delivered the opinion of the court.

In this case, the plaintiffs below (Drapers) rely upon two titles for undivided portions of the premises for which this action of ejectment was brought. Shaw and Caldwell were originally joint owners of the lot, and the plaintiffs claim through Block, who, it is alleged, obtained the title of Shaw by a purchase at sheriff’s sale in December, 1823, and the title of Cald *80 well by a purchase at coroner’s sale in April, 1824. It is seen by the statement, that the defendants, Bryson and others, claim under a deed made by Caldwell for himself, and as attorney for the heirs of Shaw, on the 14th of May, 1821, acknowledged July 16th of that year, but not recorded until the 3d of August, 1824. The sheriff’s deed to Block for Shaw’s interest, is dated December 10,1823, and is acknowledged and recorded on the next day. The coroner’s deed to Block for Caldwell’s interest, is dated May 14th, 1824, and is acknowledged and recorded on the 10th of August following. These two last deeds were executed between the date of the deed to Bryson, in 1821, and its record on the 3d of August, 1824, but the coroner’s deed to Block was recorded August 10th, being seven days after the record of Bryson’s deed. It will be seen by referring to the instruction given by the court, on the request of the defendant, (which is called the third instruction, although it is the first in the series asked,) that the title claimed by the plaintiffs under the sheriff’s deed for Shaw’s interest, was excluded from consideration, as the court declared that the judgment and sheriff’s sale were void, because the court had not obtained jurisdiction over Shaw’s administrator when the judgment was rendered. It will be further seen, by •'‘referring to the first instruction given at the request of the plaintiffs, that the deed to Bryson, dated in May, 1821, and not recorded till August, 1824, is declared void against the sheriff’s and coroner’s deeds to Block, although the coroner’s . deed is dated in April, 1824, and not recorded until August 10th, afterwards. The instruction given for the defendants, numbered as the 8th, gives full effect to the unrecorded deed to Bryson against both of Block’s deeds, if Block, at the time of his several purchases, had notice that the lot had been sold to Bryson. The court found for the plaintiffs for an undivided half of the premises. This finding, under the law declared by the court, must have been for the title conveyed to Block by the coroner’s deed for Caldwell’s interest, as the sheriff’s deed for Shaw’s interest was declared inoperative, and it must fur- *81 tber bare negatived all notice to Block of Bryson’s title at tbe time of this coroner’s sale.

As both parties have taken exceptions and writs of error, the questions decided against each, so far as they .are material to the settlement of the controversy, will be considered.

1. The exclusion of the sheriff’s deed for Shaw’s title will be examined first. The objection sustained by the court was, that the judgment against John Shaw, administrator of Joel Shaw, was void, because the scire facias, which issued to revive the suit against the administrator, John Shaw, instead of having a sheriff’s return of service upon it, had an acknowledgment, signed by the administrator, that it was personally served upon him, and the court afterwards rendered a judgment by default; This is the force of the objection, as sustained in the instruction given for the defendants ; for the exclusion of the sheriff’s deed was put upon the ground, that the court had not obtained jurisdiction over the administrator when the judgment was rendered. It is apparent that the court that rendered the judgment against Shaw’s administrator, acted upon the acknowledgment of service by the administrator, as equivalent to a return by the sheriff, and was, no doubt, satisfied, that the administrator had signed the acknowledgment, although the entry of the judgment by default does not show that fact. I do not find any statute prescribing the mode of serving a scire facias to revive a suit against an administrator de bonis non, at the time this writ was issued. The act of 1807, in its 11th section, (1 Terr. Laws, 110,) provides for a scire facias to bring in the administrator of the original defendant, who may have died pending the action, and it declares, that, if the administrator, being duly served with a scire facias from the office of the clerk, twenty days beforehand, shall neglect to become a party to the suit, the court may render judgment against the estate of the deceased. By the English law, the sheriff would return on the scire facias either ‘ ‘ that he had given notice to the defendants,” or “ that they have *82 nothing by which he can make known to them.” Tidd’s Practice, 1038.

In the present case, there is no actual return under the hand of the sheriff. In Norwood v. Riddle, 1 Ala. Rep. 195, error was prosecuted to reverse a judgment by default, where there was no return by the sheriff, but where there was an endorsement upon the writ, signed by the defendant, in these words : “ I acknowledge the service of the within writ.” The entry of the judgment states the appearance of the plaintiff by his attorney, and proceeds thus, “ and upon the affidavit of Moses Jones to the hand writing of the signature of Henry Norwood, to the acknowledgment of the service of the writ upon him, and on motion of the plaintiff by his attorney, and the defendant, being solemnly called, came not but made default,” &c. The Chief Justice says : “The endorsement upon the process, purporting to he an acknowledgment of the service upon Nor-wood, is certainly not sufficient 'proof of that fact; but when it is shown, that the acknowledgment is subscribed with the ñame of Norwood, in his own hand writing, the evidence is satisfactory to show that the act was his own.” It is to be observed that this was a case where the party was seeking directly to reverse the judgment, and not one in which the judgment was simply used in evidence ; and there the acknowledgment of service, when shown to be made by the defendant, was held equivalent to a sheriff’s return of service, and authorized a judgment by default. If the record had been used in another collateral action^ and there had been no entry that the signature of the defendant to the acknowledgment of service had been proved, the court in which it was thus offered as evidence, would have been bound to intend that it had been proved; or rather, would have been bound to disregard the objection, because it was an objection only available in a proceeding to set aside or reverse the judgment. It was decided in this court, as early as 1823, in Cabeen v. Douglass, 1 Mo. Rep. 336, that a sheriff’s return to the original process *83 forms a part of the record, and that error may be assigned in it; which accords with Norwood v. Riddle, from Alabama. Now it is apparent that the objection made in this case to .the judgment rendered against Shaw’s administrator, is within the same principle, and might be enforced in the same mode, that is, by writ of error. It cannot, at this time, be necessary to cite and comment upon the authorities in which the doctrine is maintained, that a purchaser at sheriff’s sale, is not affected by any error or irregularity in the judgment or other proceedings which resulted in the sale, unless they are of a character that rendered the whole proceeding a nullity. The objection now taken to the judgment against Shaw’s administrator, that the defendant acknowledged the service of the scire facias by an endorsement on the writ, instead of that fact being returned by the sheriff, is not supposed to affect the validity of the judgment when used in this case.

2. Another objection is taken to this sheriff’s deed, which is, that it appears that the property was levied on and advertised on the 27th November, and was sold on the 9th of December, and that consequently the notice required to be given by the sheriff had not been given. In the sheriff’s deed it is stated that twenty days’ notice of the time and place of sale had been given by six hand bills affixed in the most public places in the county of Pike. It is true that a notice of the sheriff’s sale which is appended to the deed, is dated at the bottom “Nov. 27th, 1828,” and in his deed the sheriff states, that under the execution, he levied upon the property on the 27th November, 1823. So far as the question is affected by the date of the advertisement, there is no difficulty in reconciling that with the statement in the deed, that twenty days’ notice of the sale was given, for it would be an entirely legal notice, and a discharge of the duty enjoined by the statute, if the paper called the notice had been set up for twenty days at the proper places, although it was dated on the 27th November, or had any other date, or no date at all. The statement in the deed that the sheriff had levied upon the property on the 27th November, is *84 not the statement of a fact inconsistent with the statement that twenty days’ notice of the sale had been given. There was no act required or authorized by law, to be done by the sheriff, which amounted to a levy, as that word is understood when applied to the service of personal property. He could not take possession, or in any manner interfere with the possession of the property. The word levy, as used in deeds made by sheriffs for real estate, has no significance, and when used, the date of it is commonly copied from the advertisements put up in the county or printed in the newspaper. The statute which required the sheriff to make a deed to the purchaser, prescribed its recitals, and directed that it should “recite the execution, purchase and consideration.” Geyer’s Digest, 267, section 66. If it be said, the recital of the fact that notice of the sale was given, was not required by this act, and is, therefore, no more evidence of that fact than the recital of the time of levy is evidence of the commencement of the sheriff’s proceedings under the execution, it may be answered, that the sheriff was, by law, required to give notice, and he was not required by law to do any act prior to the notice, nor was he required to do any other act than give notice prior to the sale. If, therefore, the levy mentioned in the deed means the giving of notice on the 27th November, then this statement would conflict with the sheriff’s recital in the deed that he had given twenty days’ notice of the sale, and between these two recitals, thus conflicting, we would give effect to that which alleged the performance of a duty required of the sheriff before the sale. But it is a more useful answer to this and similar objections to such sales, that the purchaser is not affected by any irregularity in the sheriff’s proceedings in making sale under an execution, unless he has participated in occasioning it, or there has been some departure from the requirements of the law for some fraudulent purpose. The doctrine which has been maintained in the courts of Kentucky, upon this point, is sustained by reason, and is of the utmost value in a country where real estate is subject to sale on execution. It has been there decided, that the *85 omission o£ the sheriff to advertise the sale of land, as required by law, does not vitiate the sale to a fair purchaser. Webber & Stith v. Cox, 6 Monroe, 110. Judge Owsley, in giving the opinion of the court, says : “It would indeed be out of the power of all those who might be disposed to buy at such sales, to ascertain and know whether or not the officer by whom the property is exposed to sale, has, in every respect, complied with the provisions of the law, and if every failure on his part to do so was allowed to affect the sale, but few would venture to become purchasers at such sales, and the interests of both creditor and debtor would be greatly prejudiced.” The same doctrine is declared in an opinion by Chief Justice Boyle, in Lawrence v. Speed, 2 Bibb, 401. The sheriff is held liable to the defendant in the execution, for any damages resulting from his omission, and if there is any fraudulent omission of which the purchaser has notice, the sale will be held void. This seems to have been the doctrine settled in that state, as well as in others, and commends itself to our reason, as necessary to the interest of all parties concerned in such sales, as well debtors as creditors. The view taken of this branch of the plaintiffs’ title, in the court below, was erroneous, as the sheriff’s deed was excluded from consideration by an instruction given for the defendants.

3. The Circuit Court sustained the other part of the plaintiffs’ title, which was set up under the coroner’s deed made to Block, and in sustaining this part of the title, there was an error committed in favor of the plaintiffs and against the defendants. At the time of the coroner’s sale to Block, the deed to Bryson was not recorded, nor was it, at the date of the coroner’s deed, which is dated April 14, 1824. But the deed to Block was not recorded until August 10th, more than three months after its date, and seven days after the deed to Bryson was recorded.

Now, if the effect of these deeds is to be determined by the act of 1817, that to Bryson will be the better title. Under the second section of that act, (1 Terr. Laws, 548,) the deed to *86 Bryson, not being recorded within three months from its datet was declared to be void as against subsequent purchasers so recording their deeds within the time prescribed by that section, that is, within three months from their date. Block’s deed being dated on the 14th of April and not recorded until the 10th of August, was not recorded within three months from its date, so that the grantee in it is not in a condition to dispute the deed to Bryson, on account of its not being recorded in time. If it be said it was not acknowledged until August and was immediately recorded, the answer is ready and effectual, the statute fixes the date of the deed as the commencement of the three months within which it is to be recorded. It appears, on examining the certificate of acknowledgment, that the clerk certifies that the deed, on the day on which it was acknowledged, was signed and sealed by the sheriff in open court, but this is a fact which the law has not entrusted him to certify, and his certificate to that fact is of no value.

If the act of 1821 were applicable to the case, it would as decidedly give the preference to Bryson’s deed ; for, under it, the deed to Block would not have any effect, as against Bry-son, until it was filed for record, and before that event Bry-son’s deed was recorded. But it is not thought that the act of 1821 applies to the case, for reasons not necessary now to be stated, and this part of the title is disposed of under the act of 1817. The instructions given by the court which declared Bryson’s deed void, as against the coroner’s deed to Block, were erroneous.

The case, as now presented upon the record, requires that there should be another trial for the purpose of determining whether the title under the sheriff’s deed to Block shall prevail against Bryson’s deed. The Circuit Court, after deciding that the defects in the proceedings against Shaw’s administrator, render the sale and deed a mere .nullity, proceeded upon the coroner’s deed, and found for the plaintiffs for the part conveyed by it. As this latter deed is held by this court to be inoperative upon the case presented in this record, because not *87 recorded in tbe time required by tbe act then in force, tbe chief object of another trial will be to determine whether Block had notice of Bryson’s title, when he purchased at the sheriff’s sale. Upon this point, the evidence in the record is very strong, but it is a question of fact to be determined by a jury.

4. Although the question, whether an unrecorded deed, which was made subject to the act of 1817, will prevail in a court of law over the title of a purchaser with notice of such deed, is not one of very general importance at this time, yet it arises in this case, and may as well be decided.

In England, as late as the case of Doe v. Allsop, 5 B. & Ald. 442, it has been considered as a new question, under the Stat. 7 Ann, c. 20, whether a court of law could sustain an unregistered deed against a subsequent purchaser, on the ground of notice. In Jackson v. Burgott, 10 John. R. 458, the question is discussed by Chief Justice Kent, and the opinion expressed that the subsequent purchaser', taking his conveyance with notice of the prior unregistered deed, is guilty of a fraud, and that a court of law, as well as a court of equity, can grant relief against a deed thus fraudulently made, and that notice is equivalent to the registry. A subsequent statute in that state introduced the words “bona, fide purchaser,” which, of course, rendered notice as effectual as registry. The decisions in different states differ upon this question, but it is both most just and most reasonable, to give effect to the notice of an unrecorded deed in a court of law, as well as a court of equity. Let the judgment be reversed,

the other Judges concurring.