3 Stew. 307 | Ala. | 1831
The single question made for our consideration is, whether the deputy sheriff can make a deed in the name of his principal, for lands sold under c~ceeution,without a written deputation or authority under seal. As lands are never sold in England by virtue of executions, their books furnish no authority directly in point. They however contain analogous principles wortThy of notice. At commcn law, a sheriff has a right to appoint deputies, though the King's letters patent do not expressly grant this authority. This power is incident to the very
It remains to inquire what are his powers, when thus constituted a deputy? In 1st Backus,
In this case 1 admit that a deputy sheriff may in the name of his principal, do all ministerial acts which the high sheriff himself might do, by virtue of his office. That to sell land under an execution, and execute a deed of conveyance to the purchaser, are ministerial aGts which may be done by a deputy sheriff. Indeed the authorities are too clear to attempt to controvert this proposition. But this supposes the acts to have been done by a lawful deputy. Whether the record in the present case shews a lawful deputy is now the only inquiry. I hold, that to constitute a lawful deputy or under sheriff, his appointment must either be entered of record in the Court where he is deputy, or the deputation must be by deed, filed as of record in the Court. The high sheriff may make his appointment by parol, but whenever the acts of the deputy are called in question, the evidence of his authority must be derived from the above source. In Bachus’sheriff,
From these authorities taken together, I think it clearly deducible, that the only authentic evidence of the appointment of a general deputy sheriff, is an entry of record, or deed filed as of record in the Court, shewing the appointment. If then we recognise the officer at all, we must resort to the common law for the mode of authenticating the appointment; and at common law, it seems to me that none would be legal, except one or the other of the modes above stated. I care not how the sheriff makes the appointment, whether by parol or otherwise, my position and conclusion is, that whenever the acts of his deputy are called in question, the authentic evidence of his appointment will be an entry of record, or a deed filed of record in the Court, shewing the appointment. The reason why the appointment should be thus made, is obvious; it is in order to give public notoriety of the fact that an under sheriff has been appointed, to whom the community may look for the transaction of business, when from sickness or other cause, the principal sheriff may be unable to attend to the duties of his office} and mainly that those offi»
In the case under consideration, the only evidence that the person who executed the deed of conveyance, was a general deputy, is the parol testimony of the high sheriff, now out of office. According to my premises, this testimony was improper and insufficient, and consequently the Circuit Court did not err in rejecting the deed of conveyance.
Reversed and remanded.
1 Back. on shffs. 13. 6 Bac. Ab. title shff. 153.
1 vol. 254.
Pages 208, 209.
Page 13.
Page 154.
2 John. R. 63,
2 Wash R.162.
Laws of Ala 309.
10 John. R. 223.
18 John. R. 7.
Page 745.
Page 10.
Page 254.