Kelly v. Creen ( 1870 )

The opinion of the court was delivered, January 3d 1870, by

Thompson, C. J. —

When this case was here before, as it will be seen it was, by reference to 3 P. F. Smith 302, the sheriff’s sale to Mitcheltree, under whom the defendant claims title, was held good against the objection that the sale was on a plu. venditioni exponas after its return day. The sale was under the Act of 1836, which it was then shown could be legally after the return day of the venditioni exponas, and before the Act of April 1845 had taken effect. Other objections to the sheriff’s deed were made and examined at the time, and were set aside on solid grounds, as the opinion of Strong, J., abundantly shows.

Now a new objection to the validity of the sheriff’s sale to Mitcheltree, is made, namely, that a book in the sheriff’s office at that time, now lost, it is proved showed that the land in controversy had been up for sale on the 26th of April 1845, and was bid off to David Kelly, one of the defendants in the execution, at the sum of $630, “with the understanding,” says the minute, “if the money is not paid before the 8th of May, the property shall be sold again.” There was an adjournment of the sale, of course, to that day, in order to execute the arrangement. Across the memorandum, in red ink, says the witness, was the following entry: “ 8th of May, money not being paid, I have this day sold the property to John Mitcheltree for $600and so it was returned, as the deed shows. David Kelly, who had made the previous bid, and failed to comply, made, and could have made no objection to the property being again put up and sold. Nor did the defendants in the execution, or anybody else, and the deed was acknowledged to Mitcheltree, and the title passed to him according to our former decision. Even if the minute book referred to, did possess the force of a record, the whole record must be taken together, and that shows no sale to Kelly. It shows a legal reason why there was none, and why the property was put up and sold to Mitcheltree. Kelly’s bid was entertained and was to become good on compliance by payment of the money; it failed, and of course went for nothing. This the record shows, and it does not contradict the return of a sale to Mitcheltree, even if it were possible so to do by the memorandum, which the witness testifies was not even entered on the sheriff’s book, or docket proper. Mitcheltree was not affected by anything in this memorandum. It had no characteristics of a record of which he was bound to take notice. Nor do we see any grounds for holding the sheriff’s docket to be a record. It has never been so held, although directed to be kept as furnishing the means of proof of things transacted in the sheriff’s office, and possibly of supplying contents of lost papers. But we need not enlarge on this point in the view we have taken of the memorandum spoken of. In view of what was determined in the former case, and what we have already said in this, we think further notice of the errors assigned is not necessary. Seeing nothing to correct in the record, the judgment of the court below is affirmed.