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possession is in a third person, the lessor must either show that such third person came into possession under the debtor, and that his right to the possession has ceased; or (should the party in possession hold adversely to the debtor) be prepared with evidence of his debtor's title. (Adams on Eject. 353-5.) And in addition, a
a tenant by elegit, in order to recover possession of the land extended, must prove the judgment, as well as the elegit. (Buller's N. P. 104. 2 Peake's Ev. 315.)
In an action of ejectment by a purchaser under a sheriff's sale on execution, to recover the possession of the land, it is incumbent upon the plaintiff to produce the sheriff's deed (in those states where a deed is required by statute) and the execution, and also the judgment record or roll, or an exemplified copy of the judgment on which the execution issued. Papers attached together by the clerk, but not including any summons or pleadings, cannot be a judgment roll under the New York practice; and there can be no judgment under that practice, capable of being docketed, without a roll. The proof must establish a valid judgment and execution, the sale of the land by virtue of the execution, and a valid deed by the sheriff to the purchaser, in order to entitle the claimant to recover in the action of ejectment, either against the defendant in the execution or any one else in possession; and the rule is the same in several of the states. (Jackson v. Hasbrouck, 12 Johns. R. 213. Townshend v. Wesson, 4 Duer's R. 342. Fenwick v. Floyd, 1 Har. & Gill's R. 172. Den v. Morse, 7 Halst. R. 331.) It has been held by the English courts that the writ of execution, without the judgment, is a sufficient title to the vendee of the sheriff. (Doe v. Murless, 6 Maule & Selw. R. 113. Doe v. Thorn, 1 ib. 425.) But this will not answer according to the practice which prevails in the United States. Here the judgment must be proved, as well as the execution, whoever the party may be claiming under the sheriff's sale. It is not necessary, however, for the claimant to prove that the sheriff filed the certificate of sale required by the statutes of New York. The courts hold that such filing of the certificate is not a condition precedent to the giving of a deed by the sheriff, and passing the title; and that the sheriff's omission should not prejudice the purchaser. The statute is directory to the sheriff, but the certificate is not necessary to the title of the purchaser. (Jackson v. Page, 4 Wend. R. 585. Jackson v. Young, 5 Cow. R. 269.) And, as a general rule, it may be
affirmed, that the mere neglect of the sheriff to comply with the requisitions of any provision of the statute in respect to the sale of real estate upon execution which are directory simply, will not affect the validity of any sale made to a purchaser in good faith, without notice of the omission. Sometimes there is a statute to remedy such omission in favor of bona fide purchasers; but without the aid of a statute, the rule seems to be well settled, that the purchaser will not be allowed to suffer by reason of such omission.
The claimant in ejectment, under a purchase at sheriff's sale, on a judgment against a party not in possession of the lands sold, must prove, against the one found in possession, that the party against whom the judgment was rendered had some right, title or interest in the premises sold, to which the judgment attached. When the defendant in the execution is the possessor, that is of itself sufficient; for the reason that actual possession is prima facie evidence of a legal title. The defendant will not be permitted to show title in another, for the plaintiff comes into exactly such estate as the debtor had; and if it was a tenancy, the plaintiff will be a tenant also, and estopped in a suit by the landlord from disputing his right, in the same manner as the original tenant. But where the defendant in the execution is not in possession, then it is incumbent upon the claimant to prove that the defendant had such an interest in the premises in dispute as was liable to the lien of the judgment. And it has been held not enough to show that such party held adversely for less than twenty years, but abandoned the premises before judgment, to which she never returned; though, a few months after abandoning, she conveyed to the defendant in the ejectment, who afterward entered under the conveyance. (Jackson v. Town, 4 Cow. R. 599.) Usually statutes exist declaring upon what a judgment shall attach and become a lien; but the principles above laid down are applicable in all cases of sales of real estate under executions; although the statutes of the state should be examined, in order to ascertain the nature of the estate which
be sold. In one case, decided by the supreme court of the United States, where there was a deed of land to a debtor in trust which conveyed to him a naked legal title, it was held, that he took under it no interest that could be seized and sold by the marshal upon execution; and that a purchaser at such sale could not maintain an action of ejectment under the marshal's deed. And it was further held, that it would not aid such title to show the fraudulent character of the trusts, as against creditors. Such evidence could not enlarge his legal interest beyond the terms of the deed. It was suggested by the learned chief justice, who delivered the opinion of the court, that an inquiry into the validity of such trusts in an action of ejectment would not only be inconsistent with the established principles and jurisdiction of courts of common law, but also inconsistent with that great fundamental rule in the administration of justice, which requires that every one shall have an opportunity of defending his rights before judgment is pronounced against him. This reasoning was considered pertinent, from the fact that the cestuis que trust, whose interest in the lands claimed it was sought to impeach, were not before the court. The fact is, that, in order for the purchaser under an execution to recover in ejectment, he must show that the debtor had a beneficial interest in the property sold, as well as that the property was legally sold. (Lessee of Smith v. McCann, 24 How. U. S. R. 398.)
In the state of Connecticut, a copy from the records of the snperior court, of an execution returned levied upon land, and of the town clerk's certificate that it is recorded in the town records, is held to be good evidence of title. But an execution not recorded in the office from whence it issued, although recorded in the records of the town clerk, cannot be admitted as evidence of title. (Barney v. Cuttler, 1 Root's R. 489. Otis v. Abel, 2 ib. 521.) And in Connecticut, it is held, that, if the plaintiff's title is the levy of an execution, the plaintiff must produce the judgment if required. (Lillie v. Wilson, 2 Root's R. 517.) In ejectment brought in Connecticut, where the plaintiff claimed title, by the levy of an execution, and where the action was commenced after the return of the execution, and before it was recorded at full length in the office of the clerk of the court whence it issued, a copy of the record was held inadmissible, as the title to the land, under the execution, was not complete until so recorded. (Benton v. Pond, 5 Day’s R. 160.)
In ejectment in Pennsylvania, a sheriff's deed of sale, under a venditioni exponas, is admissible in evidence though not recorded ; the acknowledgment in court, and the registering it in the prothonotary's office, being held a sufficient recording within the act requiring the deed to be recorded. (Skrider v. Nargan, 1 Dallas' R. 68.)
In ejectment in the state of New York, the plaintiff, in making out title under a sheriff's deed, proved that the judgment debtor was in possession of the premises several years before the judg. ment, and that the defendant held under him; the court held, that the defendant was estopped to show title out of the judgment debtor; and if he had a written lease which would affect his rights, he should produce it without notice from the other party. (Jackson v. Jones, 9 Cow. R. 182.) In New York it is necessary that a purchaser under a sheriff's sale, in ejectment against the debtor, should prove a conveyance from the sheriff; but this is not indispensable in all of the states. It is only necessary in some of the states that the plaintiff produce the judgment and the execution, and prove the sale of the land, which may be done either by a deed from the sheriff or a return of the execution. And still, in these cases, in the absence of a deed from the sheriff, and his return to the execution, it seems that a memorandum in writing of the sale must be produced, to take the case out of the statute of frauds. (Vide Fenwick v. Floyd, 1 Har. & Gill's R. 172. Den v. Morse, 1 Halst. R. 331.)
In the state of Connecticut, the manner in which real estate can be taken on execution, is regulated by statute; and as the proceeding is in invitum, the courts have repeatedly decided, that the provisions of the statute must be strictly complied with, or the purchaser at the sheriff's sale does not get a valid title. (Vide Camp v. Smith, 5 Conn. R. 80. Mitchell v. Kirtland, 7 ib. 229.)
may. be inferred, however, from some of the late decisions, that the court do not at present, feel disposed to carry this principle as far as formerly; and the propriety of pushing it to an extreme has been questioned. The proceeding is, in reality, in invitum, as has been pertinently said, to the creditor as well as the debtor. The creditor is justly entitled to his pay in money, instead of which, he is obliged to lose his claim, or to take land. The questions, too, that give rise to much litigation, are rarely between creditor and debtor, where alone there is any foundation for the principle, but generally between two creditors. Such is the reasoning of an eminent lawyer, who, several years ago made a digest of the reports of the highest judicial tribunal of the state, and in deference to such considerations doubtless, confirmatory statutes have been, from time to time, passed, to quiet the titles to real estate, rendered doubtful, or void, by the omission of some requisite in the lery of
an execution; and such acts have been held to be constitutional, although they have a retrospective effect. (Vide Mather v. Chapman, 6 Conn. R. 54. Beach v. Walker, 6 ib. 190.) In the levy of the execution, the acts which the law imposes upon the officer must all appear in his return, either expressly or by fair implication, to have been performed. But the officer will be presumed to have done his duty, until the contrary appears. And where the words admit of different constructions, that will be preferred which is most consonant to law. (Whittlesey v. Starr, 8 Conn. R. 134.)
( It has been held by the supreme court of errors of the state that the levy of an execution upon the real estate of the debtor, who had removed from the state before the service of the same, is invalid, though made by direction of the creditor, where it does not appear from the officer's return, either that personal property was demanded by him, or that none such could be found, or that any search was made for such estate before the levy upon the land. It seems that no presumption will be indulged that the levy of an execution upon real rather than upon personal property, is for the benefit of the debtor. And it was decided that an officer's return of the levy of an execution upon real estate should, upon its face, without the aid of extrinsic facts, not so referred to as to be made a part of the return itself, show with reasonable certainty the quantity of land set off, and the valuation which the appraisers put upon it. And the officer's return failing to show substantially these facts, in an action of ejectment; and also a bill in equity to obtain the legal title to the land sold, both causes being heard together; the court held the levy and proceedings under it, invalid, and gave judgment against the claimant. (Coe v. Wickham, 33 Conn. R. 389.) Of course, there can be no presumption that will sustain a levy made in contravention of the provisions of a plain statute; however much the courts are inclined to presume in favor of official acts.
The doctrine of the courts of Massachusetts in respect to the proof requisite to sustain the title of a purchaser of real estate, at sheriff's sale under an execution, is about the same as that of Connecticutt. And it has been held in Massachusetts in a real action to recover land purchased at sheriff's sale, that where the sheriff failed to certify in his return upon an execution, which he had extended on the real estate of the judgment debtor, that the appraisers, appointed under the statute, were discreet and disin