McPherson v. . Hussey , 17 N.C. 323 ( 1833 )

The answers denied the fraud and set up various defenses, 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 a 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 50 acres in a fourth tract; the title being disputed, sold for $42, paid in office." Signed "A Hanner, sheriff, by J. Wheeler, deputy sheriff." She further exhibited a deed, dated 17 February, 1823, made to her by William Armfield, 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 Armfield 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 personal knowledge of (325) his own or her rights, 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." The objection to the plaintiff's case is that the proof of her title is insufficient.

It is the general 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 he has said be true or false. Here 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 ground of inference is destroyed by the express evidence. It (326) is then necessary that the plaintiff's purchase, and the identity of the land sold and that conveyed, should be proved by 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, by comparing that with the description in the deed, to ascertain whether the land be 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 be 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 the 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 by the officer who made the sale, and while under the obligation of his oath of office. The act of 1767 (Rev., ch. 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 (Rev., ch. 223, sec. 10). The act of 1799 (Rev., ch. 538) is (327) the first which embraces future cases; and 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 be living and in the State. The succeeding sheriff, personally ignorant of the facts, is authorized 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 act by construction beyond its words.

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

PER CURIAM. 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, etc., 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 Armfield, who executed it, was not the sheriff who made the said sale, but was a successor to Hanner, who did make the said sale; and declare that the said deed is void, because the plaintiff hath not charged or proved that the said Hanner was dead, or had left the State; and therefore dismiss the bill, with costs.

Cited: Edwards v. Tipton, 77 N.C. 225, 226; Curlee v. Smith, 91 N.C. 178.

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