6 Wend. 213 | Court for the Trial of Impeachments and Correction of Errors | 1830
The following opinion was delivered :
The first objection embraced iti the bill of exceptions, is that the circuit judge received an exemplification of the transcript and of the entry of the judgment in the book kept for that purpose, by the county clerk, as evidence that such a transcript was filed and such an entry made in his office. As to this point I think the decision of the court below was correct. The transcript and entry were in the nature of a record of certain judicial proceedings which by law were deposited in that office. The exemplification under the official seal Of the clerk is as good evidence of the fact that such a transcript is filed, and that such an entry of the judgment is made, as a sworn copy of the same transcript and entry would be, if produced. This point was substantially decided by this court at their last December term, in the case of The Pacific Insurance Company v. Catlett, 4 Wendell’s R. 75, where the exemplification of a document filed in the treasury department at Washington^ under the seal of that department, was considered good evidence of the fact that such a document was deposited in the office of the register of the treasury. The question as to the legal
The next objection is that the transcript and entry, if duly proved by an exemplification thereof, were not competent evidence to prove the existence of the judgment for the purposes of this suit. The statute has pointed out the mode of authenticating the proceedings before a justice in ordinary cases, by a certified copy signed by the justice, and a certificate of the county clerk, under his official seal, showing that the person whose name was subscribed, was a justice, and that the signature is in his proper hand-writing. Such a document, or the original entry in the docket of the magistrate, or a sworn copy thereof, might have been necessary, if the purchaser at a sheriff’s sale was bound to go beyond the transcript returned into the clerk’s office, to prove the right of the sheriff to sell the property. But I concur in the opinion of the supreme court on this question ; which opinion is stated more at length in Jackson v. Jones, 9 Cowen's Rep. 182. The act of 1818, under which this judgment was entered in the clerk’s office, Laws, 4 vol. p. 80, § 9, made it the duty of the justice, on request of the party in whose favor the judgment was rendered, to give him a transcript thereof, which the county clerk was directed to file in his office, and lo enter the judgment in a book to be kept by him for that purpose. The statute declares that the judgment so entered by the clerk shall from and after that time be a lien on real estate to all intents and purposes as if the same had been rendered in the court of common pleas. It is evident that the legislature intended to make the judgment, as entered by the clerk, at least prima facie evidence of the right to issue an execution thereon against the real estate of the defendant in such judgment, if not conclusive evidence of the fact in favor of a bona fide purchaser under the sheriff’s sale. All the justices of the peace in the county are officially known to the clerk, and their commission was at that time deposited in his office, as well as their official oaths. It is not to be presumed that the clerk will file a transcript, and enter a judgment in his office, unless he knows the signature of the magistrate to be genuine and that he is a justice, any more
Neither are we without precedent on this subject. Under the Pennsylvania statute, which is somewhat similar to our own, the supreme court of that state have decided that the correctness of the judgment as entered in the clerk’s office cannot be enquired into collaterally, in the ejectment suit brought by the purchaser, although the clerk has actually made a mistake in the entry thereof; that the filling of the transcript makes the judgment a judgment of the court of common pleas for all purposes of proceeding against real estate. Arnold v. Gorr, 1 Rawle’s Rep. 223. And the legislature of this state as well as the supreme court has given the same construction to this provision in the act of 1818. Laws of 1824, p. 297, § 45. 2 Cowen’s Rep. 596. 5 id. 31. The record although not very full and formal must in such cases be deemed sufficient authority to the clerk to issue the execution ; and if sufficient for that purpose, it is so prima fade to protect the purchaser under the sheriff’s sale. See Doe v. Greenlee, 3 Hawks’ Rep. 281, and Lessee of Lanning v. Dolph, 4 Wash. C. C. Rep. 724.
The third objection relates to the admission of parol declarations of the defendant in this suit to prove the existence of the judgment. This evidence was clearly inadmissible; but as there was legal proof sufficient to establish the fact, this point becomes unimportant, in the decision of this cause.
The objection, that the demise was laid before the lessor’s title accrued by the giving of the sheriff’s deed, was valid when made; and would have been fatal had the pleadings continued in the same situation in which they then were; but it was a mere matter of form, as the suit was not com
The fifth objection is that there was no title proved in Gridley under whom the lessor of the plaintiff claimed. There was evidence that Gridley was in possession of the premises, claiming them as his own, prior to the giving of the mortgage to Tuttle. This was prima fade evidence of title
I am satisfied the statute against buying and selling pretended titles cannot apply to judicial sales. The statute, except as to the penalty, is merely in affirmance of the common law ; and that never has been considered as preventing the change of property by operation of law, or by a sale by the proper officer under a bona fide judgment or decree of a court having competent jurisdiction to order such sale. It does not come within the mischiefs intended to be guarded against by the statute.
It has long since been settled, and I think correctly, that the deputy who had commenced the execution of the process, by a levy on the property during the term of office of his principal, may proceed and complete the execution thereof afterwards. The giving of the conveyance after the expiration of the time limited for the redemption of real property, is as necessary a part of the duty of the officer to complete the sale, as the putting up the property and striking it off to the highest bidder. An actual removal of the deputy by his principal before the execution was completed, would present a different question.
The only remaining point in this case relates to the unregistered deed from Gridley to Tuttle. This conveyance
If the subsequent purchaser knows of the unregistered conveyance at the time of his purchase, he cannot protect himself against that conveyance, and whatever is sufficient to make it his duty to enquire as to the rights of others, is considered legal notice to him of those rights. Here Tuttle, the person to whom the unregistered deed was given, was in the actual possession of the premises at the time of the sheriff’s sale, and this was good constructive notice to the subsequent purchaser to make it his duty to enquire as to the rights of the person in possession. In Colby v. Kenniston, 4 New-Hamp. Rep. 262, where the purchaser under an unregistered deed was in the open and visible possession of the premises, it was held sufficient notice to protect him against a subsequent purchaser, and to charge the latter with a knowledge of his rights. So in Norcross v. Widgery, 2 Mass. Rep. 508, Ch. Justice Parsons says: “ This notice may be express, or it may be implied from the first purchaser being in the open and exclusive possession of the estate under his deed.” See also Eyre v. Dolphin, 2 Ball & Beal. 301. Forbes v. Denniston, 2 Brown’s P. C. 425. McMecham v. Griffing, 3 Pick. Rep. 149. Malpas v. Ackland, 3 Russ. Ch. Rep. 273. Lessee of Bellington v. Welch, 5 Binney, 129,
I think, therefore, that Hills was not protected against the unrecorded deed to Tuttle, provided the same was actually or constructively delivered before the judgment became a lien on the premises, and that the judge erred in deciding that the time of the delivery was immaterial. On this ground alone, I think the judgment of the court below should be reversed, and a new trial granted.
For affirmance—Senators Allen, Conklin, Hubbard, Mather, and Throof—5.
For reversal—The Chancellor, and Senators Armstrong, Beardsley, Benton, Boughton, Deitz, McCarty, McLean, Oliver, Rexford, Sherman, Tallmadge, Todd, Wheeler and Woodward—15.
Whereupon the judgment of the supreme court was reversed.