Donahue v. McNulty
Before: Currey
Synopsis
Sheriff’s Deed—Parol Evidence not Admissible.—Parol testimony of the officer who makes a sale of property under an execution, and executes a deed to the purchaser therefor, is not admissible for the purpose of adding to, contradicting, or altering the terms of the deed.
Same—How meaning of Ascertained.—Where the language of a deed executed by an officer for property sold under execution is plain and unambiguous, the Court should limit its inquiry to what the words of the deed express, without regard to any intention independent of the words.
Recitals in Sheriff’s Deed.—The officer who makes a sale of land by virtue of an execution, and executes to the purchaser a deed therefor, must, in his deed, make recitals of the recovery of the judgment, the names of the judgment creditor or creditors, and of the judgment debtor or debtors, and of the issuing of an execution on the judgment, and of the levy and sale thereunder. The recital of such facts is essential to show the officer’s authority and the transmission of the debtor’s title in the property to the purchaser.
Who Estopped by Recitals in Sheriff’s Deed.—The officer executing a deed for property sold under execution, and those who claim under the deed, are estopped from denying the truth of the matters recited therein, hut the same are not evidence as against strangers, or those claiming adversely to the deed.
Against whom Officer’s Deed is Evidence.—A deed of a constable, made of land sold under execution, is not evidence of the purchaser’s title as against any person except those whom the deed shows upon its face to have been the judgment debtors, and named as such in the execution issued on the judgment, and whose interest in the property was sold by the officer.
Parol Evidence as to Recitals in Officer’s Deed.—Parol evidence is inadmissible to show that a constable’s sale was made by virtue of any other judgment or execution than that recited in the deed; and it is also inadmissible to show that the constable sold the interest of a person in the land described in the deed, whose interest the deed itself does not recite upon its face to have been sold. Against whom Officer’s Deed not Evidence.—Where a judgment was rendered against several persons, and an execution issued upon it against all the judgment debtors, and the constable levied upon and sold the land of one of the judgment debtors, hut in making a deed to the purchaser, did not insert the name of the one whose land had been sold as a judgment debtor, or recite that his land had been sold; held, that the deed was not evidence of title in the purchaser as against the owner of the land.
By the Court, Currey, J. This is an action of ejectment to recover possession of the one undivided seventeenth part of certain mining ground, situate in the County of Sierra, of which the plaintiff1 alleges he was the owner and in the possession in June, 1863, and of which he was then «usted by the defendants. The defendants, by their answer, deny that they wrongfully ousted the plaintiff, and further answering, aver that on the 16th of October, 1861, three judgments were obtained in a Justice’s Court in said county against the plaintiff and others as defendants, described as the Buffalo and Richardson Mining Company, and that under executions issued on such judgments, the right, title, and interest of the plaintiff was sold, and afterwards conveyed by a constable to Lawrence Rolan, one of the defendants in this action; and they further aver that each of the defendants owned, at the time this action was commenced, and was entitled to the possession of an undivided portion and interest in the premises, which portions, in the aggregate, comprehended the entire property.
As to the title and interest of the plaintiff to the undivided seventeenth part of the premises at the time the sale under [414]the executions transpired, there seems to have been no issue made by the answer of defendants, or by the evidence adduced at the trial.
The decision of the case, it will appear, rests entirely upon the effect and competency, as evidence in the case, of the judgments obtained in the Justice’s Court, and the executions issued thereon, and the alleged sale of the plaintiffs’ right, title, and interest in the premises, and the deed executed hy the constable and produced in evidence.
In each of the cases in the Justice’s Court, John Donahue was one of the defendants, and was served with summons, and Lawrence Rolan, who became the purchaser at the sale, and is the grantee named in the deed, was also a defendant, and was served with summons. The defendants served made default, and there was no appearance in any of the cases on the part of the defendants who were not served with process. In two of the suits, judgments were entered against all the defend- , ants who were named in the summons, and in the other, judgment was entered against all the defendants named in the summons, and also against three other persons not mentioned therein. The recitals in the deed are that a writ of execution issued out of the Justice’s Court of a Justice of the Peace therein mentioned, directed and delivered to James F. Dixon, constable, commanding him that of- the goods and chattels of P. Donahue, M. Donahue, L. Rolan, B. Kenrief, P. Cody, H. F. Richols, P. Daley, J. Wiseman, R. Anderson, J. Doe, H. Hoe, and R. Roe, composing the Richardson and Buffalo Company, he should cause to be made the moneys in said writ specified; and if sufficient goods of said persons could not be found, that then he should cause the same to be made of the lands of which the last named persons were seized; and then it is further recited in the deed: “And whereas, because sufficient goods and chattels of the last named persons in the said writ could not he found, whereof the said constable could cause to be made the money specified in said writ, he, the said constable, did, in obedience to the said command, levy on, take, and seize all the estate, right, title, and interest of the
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