Jackson v. Latta

15 Kan. 216 | Kan. | 1875

The opinion of the court was delivered by

Valentine, J.:

1. sheriffs deed, Title. ‘

This was an action in the nature of an action of ejectment, brought by Cynthia Jackson and others against George F. Latta. The plaintiffs claim as heirs of the original' patentee, Thomas Jackson. The defendant claims under a sheriff’s deed, executed June 13th 1859, to Asa Hairgrove, on a supposed judgment rendered in favor of said Hairgrove and against said Thomas Jackson and others. On the trial in the court below, after the plaintiffs had introduced their evidence and rested their case, the defendant introduced said sheriff’s deed in evidence, showing a regular chain of title from Hairgrove to himself. The sheriff’s deed was of course sufficient evidence, prima facie, to show that the title to the property in controversy had passed from Jackson to Hairgrove. (Ogden v. Walters, 12 Kas. 292, and cases there cited.) The plaintiffs then introduced the record of the proceedings upon which said sheriff’s deed is founded. No objection was made to the introduction of this record. No claim was made that it was not the whole of the record, and a true record of each and all of the proceedings had in the case of “Hairgrove against Thomas Jackson and others,” which constitutes the foundation for the defendant’s sheriff’s deed. Hence, if this record should be defective in any essential and material particular, the sheriff’s deed founded thereon must be void. Now gaid record seems to show that no judgment was ever entered of record in said case of “Hairgrove against Jackson and others.” And as judgments can be proved only by a record, it would seem to show that no such judgment was ever rendered. There is no record of any such judgment, and hence, for the purpose of the case, we are bound to say that no such judgment was ever rendered. And there being no judgment, said sheriff’s deed of course is void. It cannot exist without having a judgment as a foundation. It is also claimed by the plaintiffs that said sheriff’s deed is void for other reasons, but we do not think that the claim is tenable. What answer the defendant would make to the different claims of the plaintiffs, we are a loss to know, for the defendant has filed no brief, nor made any oral argument in this court.

2.Entering juagment nuncp10

We should think from the record brought to this court that a judgment had in fact been rendered in the said case of “Hairgrove against Jackson and others,” but that it had never been entered of record on the journals ^ cour£_ think the evidence furnished by the record itself strongly proves this to be true. And if we are correct in all this, it would be an easy matter, ■in a proper proceeding, and with proper notice to all parties interested, to have the judgment that was actually rendered entered of record, nunc pro tunc. The verdict of the jury, and the paper signed by the judge, show what the judgment actually rendered but not entered was. And if such judgment was entered mino pro tumo, it would probably uphold said 'sheriff’s deed, not only as against these plaintiffs who merely claim as heirs of said Thomas Jackson, but as against others also, for the defendant and his grantors have been continuously in possession of the property for many years, their possession commencing before the death of said Thomas Jackson.

The judgment of the court, below is reversed, and cause remanded for a new trial.

All the Justices concurring.