JAN. TERM, 1856. JORDAN V. BRADSHAW. *JORDAN [106 V. BRADSHAW ET AL. A sheriff's deed is evidence, under the statute (sec. 60, chap. 67, Digest), of the facts recited in it;
JORDAN V. BRADSHAW. VOL. 17 but if such deed fail to recite all the facts required fice of the clerk of the circuit court by the statute—as where it fails to recite the judg-upon a -judgment rendered before a ment under which the property was sold—it can furnish no evidence of the existence of such facts : justice of the peace in favor of Asa G. and the party claiming under the deed, must prove Baker against James Mills. them aliunde. The plaintiff also read in evidence, It is not necessary that an execution should issue from the docket of judgments and de-within a year and a day to keep the judgment alive. (Hanly v. Corneal, 14 Ark. 127.) crees of the circuit court, the entry of a The issuance of an execution by a justice of the judgment therein between said parties, peace, upon a judgment rendered by him, and a and a transcript of the proceedings and return of ?mita bona thereon, are pre-requisites to judgment in the case, before the justice the filing of a transcript of such judgment in the circuit court and the issuance of execution thereof the peace, filed in the office of the from : but a failure to comply with such pre-clerk; in which transcript it appeared requisites, cannot affect the rights of strangers to have been noted on the justice's when brought up in a colla t eral proceeding, and can docket, that execution had been issued be taken advantage of by the defendant, only, in a direct proceeding. on the judgment, and returned nulla A sheriff's deed for laud sold under a judgment bona by the constable. of a justice, nee I not recite the issuance of an exe-He then read the execution from the cution by the justice and a return of main bona circuit court, under which the sale was before the filing of the tran S cript of the judgment in the circuit court. Such facts may be proved by made, resisting the judgment before the certificate of the justice, to that effect, accom-the justice, the issuance of execution ppnying the transcript wtthout the production of and the return of nulla bona, and the the original execution and return, or a certified filing of the transcript in the circuit copy thereof. A sheriff's deed to the purchaser of land sold court, together with the return of the under execution, together with the auditor's deed sheriff showing the levy, &c., and sale to the judgment debtor for the same land convey-to the plaintiff. ing a tax-title, sufficient evidence of the right of On motion of the defendants, the cir-possession to maintain ejectment. cuit court excluded from the jury the Appeal from the Circuit Court of Pu-transcript of the proceedings and judg-laski County. ment of the justice; filed in the circuit This was an action of ejectment court, the execution that issued thereou brought by Jordan against Bradshaw and the return; and, also, the sheriff's and Manuel, and determined in the deed to the plaintiff; and, thereupon, Pulaski circuit court before the Hon. instructed the jury , , in effect, that to William H. Feild. entitle the plaintiff to recover, he must The plaintiff, to sustain the issue to read in evidence either the original ex-the plea of not guilty, read in evidence ecution issued by the justice with the a deed from the auditor to James Mills return of nulla bona thereon, or a cer-for the land in controversy, which had tified copy of such execution and re— been forfeited for non-payment of turn. taxes ; and a deed from the The verdict and judgment being for sheriff of Pulaski county to him, the defendants, the plaintiff moved for reciting an execution against said Mills a new trial, which was overruled, and in favor of Asa G. Baker, but he excepted and appealed to this court. 1071 "omitting to recite the' judg-Jordan, for the appellant. ment, on which the execution issued, Bertrand and S. H. Hempstead, for or its date, or where, or by whom ren-the appellees. dered. The sheriff, however, in his acknowledgment of the deed, stated that -THOMAS JOHNSON, S. J. The [4108 the land was levied upon and sold first assignment of errors questions the under an execution issued from the of-propriety of the decision of the court
JAN. TERM, 1856. JORDAN v. BRADSHAW. below, in requiring the plaintiff to pro-dence of the facts recited; for that would duce the judgment and execution, exclude all inquiry into the au-, under which the land in controversy 5 thority under which the sher- moo was sold, before he could read the sher-lit acted, but that it should be legal, iff's dead in evidence. The 60th sec-competent evidence until falsified tion of chapter by 67, of the Digest, pro-evidence of a higher and more authen-vides that "The officer who shall sell tic character. The statute requires the any real estate, or lease of lands for more deed to recite the names of the parties than three years, shall make the pur-to the execution, the date when issueda chaser a deed, to be paid for by the the date of the judgment, order or de-purchaser, reciting the names of the cree, and other particulars recited in parties to the execution, the date when the execution, and, also, a description issued, the date of the judgment, order of the time, place, and manner of the or decree and other particulars recited sale." The deed exhibited in this case in the execution; also, a description of falls short of the requirements of the the time, place and manner of sale, law, and that too in an essential partic-which recital shall be received in evi-ular ; and, consequently, could not, of dence of the facts therein stated." itself and unsupported by other proof, There can be no question but that the have made such a case as would have sheriff's deed is evidence of the facts entitled the plaintiff to recover. The recited in;it; for the statute is plain and deed is wholly silent as to the judg.. positive upon the subject, and if the ment; and, consequently, can furnish deed shall have recited all the facts re-no evidence even of its existence, aud quired by the statute to constitute a much less of its date and filing in the complete transfer of all the right, title circuit court. Without the provision and interest, which the debtor had in of the law already referred to, there and to the property sold, it is equally can be no doubt of the necessity of lay-clear, that it should have been received ing a foundation for the introduction as evidence of its recitals, and that too, of the sheriff's deed by first producing without the introduction of the judg-the judgment or execution upon which ment and execution upon which it it is found ; and, as a necessary was founded. This court, in the case consequence, the deed, to supersede of _Newton v. The State Bank, 14 Ark. the necessity of such Rep. a foundation, 10, said: "The act of the Legisla-must show a full compliance with the ture which requires the sheriff to re-statute. The circuit court, therefore, cite the names of the parties, the date did not err in requiring the plaintiff In of the writ and of the judgment, to-this case, to produce the judgment and gether with a description of the time, execution before he could be permitted place and manner of the sale and to read the deed in evidence./ The which makes such recitals evidence of plaintiff, in obedience to the order of the facts so recited, was intended by the court, read in evidence the docket the Legislature to supersede the neces-entry in respect of the transcript of the sity for producing the record from justice's judgment, the transcript of which such recitals were made as a said judgment itself ; and, also, the matter of convenience and to furnish original execution issued to the sheriff evidence of the authority under which the of Pulaski county upon said transcript, officer acted, as well as the man-and under which the plaintiff pur-ner in which be had executed his au-chased the property in dispute, and thority, in the deed itself. Not that the recitals should be 1. See co Gossett v. Kent, 19-602 ; Kennedy V. nclusive evi-Clayton 29-270
JORDAN V. BRADSHAW. VOL. 17 'also the deed from the sheriff to the Hanly v. Carneal, 12 Ark. Rep. 527, plaintiff for said property. The de-said, that "by the Revised Statutes of fendants then moved to exclude each 1839, litle, Limitation, sec. 30, judg-'of the documents as evidence. The ments and decrees thereafter rendered, motion to exclude the transcript of the are presumed to be paid and satisfied, judgment of the justice was put upon after the expiration of ten years from the ground, that said judgment was their rendition, and by the act of De-• dead before transcript thereof was filed cember, 1844, repealing the • 30th sec-in the clerk's office, as it did not ap-tion referred to, the like period was pear from said transcript that an exe-adopted as a limitation of actions upon cution had beeh issued thereon within judgments. It is manifest that under a year and a day from the time of its our statute of limitations, fixing the rendition ; also, upon the ground that period of ten years, as the lifetime of the judgment was void,and further, that a judgment no conclusive presumption 1109 *the plaintiff had failed to show in law of payment can arise within that an execution had issued on said that space of time, and that conse-judgment by the justice, and had been quently there can be no necessity to returned "no property found," before issue executions from time to time to the transcript was filed in the clerk's keep it alive. True it is, that the j udg-office, and execution issued thereon by ment of a justice of the peace is not a the clerk, which the defendant's coun-lien, per se, upou the property of the de-sel contended could only be shown by fendant, before it is filed in the circuit a transcript of such execution and re-court : and, in that respect dif-turn, or by producing the original ; fers from that of the circuit and thereupon, the court announced *court, yet, inasmuch as no pre- [111 that inasmuch as said transcript of the sumption of payment can arise from justice did not embrace a transcript of an omission to issue execution within such execution and return, he would a year and a day, we can see no good sustain said motion, unless the plaint-reason for taking a distinction bet-ween iff would produce and read in evi-them in regard to the necessity of tak-dence such original execution and re-ing steps to keep them in life. We turn thereon, or certified copy thereof. consider this the inevitable result of The plaintiff having failed to produce the doctrine laid down by this court, either the original execution and rein the case of Hanly v. Carneal, al-turn, or a certified copy thereof, the ready referred to. There is nothing court excluded the transcript of the appearing to show that the judgment justice?s judgment filed in the clerk's is void, as contended by the defend-•office, and the execution issued by the ants. The amount was within the jur-• clerk, and the return of the sheriff isdiction of the justice, and the record thereon, and also the said deed exe-shows upon its face that the justice bad cuted by the sheriff to the plaintiff for jurisdiction of the person of the de-the land in question. The first ground fendant, as it purports to be by con-•of the motion to exclude, was •clearly fession. The third and last reason as-untenable. It was not necessary unsigned why the transcript of the jus-der the law, that an execution should tice's judgment ought to be excluded, have been issued within a year and a was also badly taken. It is true, that day in order to keep the judgment an execution to be issued by the jus-alive, as the lapse of that period of tice, and a return of nulla bona, are time did not even raise a presumption pre-requisites to the filing of the tran-of payment. This court in the case of script of a judgment of a justice in the
JAN. TERM, 1856. circuit court, and the issuance of exe-utter failure to comply with it, cannot cution therefrom, let, it is not even affect the rights of strangers, necessary that the execution from the when brought up in a col-circuit court on such judgment, should lateral proceeding, but in no recite the fact of such issuance and re-event could amount to anything more turn of execution. See Massey v. Gar-than an irregularity, and as such to be denhire, 12 Ark. 638. So that the exe-taken advantage of alone by the de. cution issued in this case of the elerk fendant in the judgment, in a direct of the circuit court, and under which, proceeding interposed for the purpose the plaintiff purchased the property ip of quashing the process issued upon dispute, need not have recited the facts such judgment.' We are clear, there-.of the issuance of the execution fore, that the court below er . red in ex- by the justice and return of cluding the transcript of the justice's lla bona by the constable, judgment, the execution issued to the but having so recited them, aud such sheriff thereon, and the deed executed recitals being supported by the certifi-by the sheriff to the plaintiff. There cate of the justice accompanying the can be no doubt or question in regard transcript of the judgment, most as-to the sufficiency of the evidence offer-suredly made a prima facie case of ed by the plaintiff to show, at least, a their existence ; and, consequently, right of possession to the premises in the circuit court erred in excluding the controversy. It is not deemed neces-justice's judgment upon that ground. sary to decide, in the present attitude 'The law authorizing a justice's judg-of the case, how far the showing made ment to be filed in the circuit court, by the plaintiff; went to establish his and making it a lien on the real estate title to the property, as he was entitled of the defendant from the time of the to recover, either upon his title or his filing of the transcript thereof (see right of possession. See Dig., ch. 60, Marlow v. Robins, exr., 14 Ark. .R. 602), sec. 11. This is believed to cover all does not require the original execution, the ground occupied by the bill of ex-or even a copy thereof to be filed with ceptions, and to dispose of .all points the judgment. True it is, that it de-properly presented by the record. The clares no execution shall be issued out judgment of the circuit court of Pulas-of the circuit court thereon until an ki county herein rendered, is therefore execution shall have been issued reversed, and the cause remaanded, to by a justice, and, returned that be proceeded in, according to law, and 112' 1 *the defendant has no goods or not inconsistent with this opinion. chattels, whereof to levy the same. Mr. Chief Justice English not sit-The statute, in requiring the plaintiff, ting in this case. in a judgment rendered by a justice 2. See State v. Norris, 19-247 ; Reeves v. Sher-of the peace, to take out au execution wood, 45-523 ; Webster v. Daniel, 47-147, and to have a return of nulla bona Cited :— 19-247-612 ; 20-127 ; 45-523 ; 47-147 ; 29- upon it before he can claim to have a 275. transcript of such judgment filed iu the circuit court, was designed alone for the benefit of the defendant, in order that his real estate should not be charged or sold, so long as he had personal property to satisfy such judgment. Such being the reason of Lhat requirement of the statute, it is clear that an 5 Rep.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.