Kershner v. Kershner's Lessee

Secondary Evidence — Res inter alios — Declarations of a Party as evidence against Ms pretensions — Rebutting evidence — Prayers and Instructions — Practice in the Court of Appeals — Presumption of Fact— Verdict in Ejectment. In an action of ejectment, the tho.ory of the defence was that at March Term, 1820, of Washington County Court, two judgments were recovered against J, under whom the plaintiff claimed title to the lands in controversy; that writs of fieri facias had been issued thereon to lie, from term to term, until in 1827, the interest and estate of J in the lands in question were seized by the sheriff and sold. To support this defence, the defendants gave in evidence the docket entries and papers in the two suits against J and the judgments thcrein-j-ouc for $011.00 and costs, and the other for $815.09 and costs, with the entries of the fieri facias and continuances down to March Term, 1827, on which were entries in one ease of 11 Made by sale of real estate,” and in the other “Made $38.84 — N. B. balance.” These entries were proved to have been made by the clerk on the clerk’s dockets. To the admission of this testimony the plaintiff excepted. It was further proved that the original writs of fieri facias were lost and could not bo found after diligent search. The defendants further proved that the sheriff advertised the interest of J in the lands mentioned in tho declaration, or some of them, for sale at sheriff’s sale; that several persons were present at the sale, and among them the plaintiff in the executions, to whom the lands were struck off, he being the highest bidder therefor; that J had often, after said sale, declared to several persons that his interest in said lands had been sold by the sheriff; that after said sale J was insolvent, and professed to own no property; that no letters of guardianship were over taken out for his son the plaintiff; and that no letters of administration wore granted upon the personal estate of J, &c., Held: 1st. That the docket entries and papers in the suits against J, accompanied with the other facts offered in evidence by the defendants, were admissible for the purpose of raising the presumption that tho writs of fieri facias, corresponding with the docket entries, did in fact exist, and wore issued to the sheriff; tliat the same were levied on tho interest of J in the lands, and that full and due return thereof was made by tho sheriff. The primary evidence being lost, the secondary evidence was admissible for the purpose of raising the presumption that a valid seizure and sale had been made by the sheriff; and for the same reason the printed advertisement from a newspaper of the sheriff’s sale, and the testimony of an appraiser as to the appraisement of the property, at the instance of tho sheriff, were admissible in evidence. 2d. It having been shown by the proof that the purchaser at the sheriff’s sale, had exorcised no act of ownership over the property during tho lifetime of J, evidence to show that the rents of the farm were, after the death of J, paid to such purchaser for ten or eleven years, until he conveyed by deed his interest in tho land, and certain receipts by him for rent within that time, and his deed of conveyance, were inadmissible to affect the title or interest of J or of his heir-at-law, tho plaintiff. Such evidence was inadmissible as res inter alios. In an action of ejectment for an undivided moiety of certain lands, evidence having been offered by the defendants, tending to prove the seizure and sale by the sheriff of tho interest in said lands of the party under whom the plaintiff claimed, to the party under whom the defendants claimed, the declarations of one of the defendants, made long after the sale, recognizing the title of the plaintiff,’ arc admissible against such defendant, for the purpose of showing that in fact there had been no valid and effectual seizure and sale by the sheriff, or of ' explaining the real character and effect of tho sale itself. A witness for the plaintiff' having testified as to certain conversations with a defendant, it was not competent, for tho purpose of contradict-mg such evidence, to ask the defendant who testified in his own behalf, to state all the conversations he had had with the witness. As rebutting evidence, the testimony of the defendant should have been confined to the particular conversations deposed to by tbe witness. "Where the prayers, granted by the Court cover the defendants’ case, and give them the full benefit of their legal defence, the judgment will not be reversed, though some of their prayers which were rejected, may have been correct. In an action of ejectment the defendants relied upon an outstanding title, derived under a seizure and sale by the sheriff of the interest in the land in question, of the party under whom the plaintiff claimed, and offered various facts and circumstances as presumptive evidence that such seizure and sale was valid. Held : That the presumption arising from the facts and circumstances given in evidence by the defendants, was not a presumption of law, conclusive upon Iho plaintiff and irrebuttable, but a presumption of fact to bo found by the jury. A plaintiff in ejectment declared for a term of fifteen years in the undivided moiety of certain lands, particularly described in the declaration. Issue was joined on the plea of not guilty. The whole question was the plaintiff's title to the land described in the narr. The jury found a 11 verdict for the plaintiff and assessed the damage at one cent. ’ ’ Held : That the plain meaning- and import of the verdict was, that the defendants were guilty of the trespass and ejectment complained of in the declaration of the plaintiff, and the jury assessed the damage of the plaintiff by reason thereof, to be one cent. Such a verdict, if set out in terms would be sufficient, and judgment would be entered thereon that the plaintiff recover his term, &c., in the undivided moiety of the tracts of laud, &e., as in the narr.

Appeal from the Circuit Court for Washington County. The facts and exceptions as stated in the opinion of the Court, will, with the prayers presented by the parties re-respectively, suffice for an understanding of the questions decided. The plaintiff offered the following prayers : 1. That if the jury find that in the year 1820, Andrew Kershner obtained two judgments against Jacob Kershner, whom they shall also find to be the father of the plaintiff in this action, and that from the March Term of the Washington County Court, 1820, continually on from term to term until March Term of said Court, 1827, there are successive and regular entries of executions or writs of fieri facias on the said judgments on the respective dockets of said Court, some of which are stated in the said docket entries to be issued “to lie,” and some where such entry does not appear, but that none of these several writs of fieri facias can be produced; and shall further find that at the March Term, 1827, of the Washington County Court, two writs of fieri facias did issue on the said judgments, and that the said writs were received by the then sheriff of Washington county, Alexander Neill, who advertised the lands to be sole! at public sale, mentioned in the advertisement, read in evidence from the files of the ‘'■Torchlight,” a newspaper published in Washington county, and shall further find that the said lands or the estate of the said Jacob, mentioned in the said advertisement, were exposed at public sale in Hagerstown, on the day mentioned in the said advertisement, and that at such sale'Andrew Kershner, the plaintiff in the said executions, was present and bid on the said property, and that the same was knocked down to him ; but shall also find that the evidence of such sale, and of the bid of Andrew Kershner, and of the knocking down of the said property or estate to him, does not appear from any sheriff’s return to the writs of fieri facias, or from any note or memorandum whatever in writing of such sale, bid and knocking down, nor from the sheriff’s deed, or from the parol' evidence of any witness or person who ever saw such note- or memorandum in writing, or sheriff’s return or deed, but from the parol evidence of Gustavus Kershner, the defendant; and shall further find that the said writs of fieri facias were returned to the said Court by the then sheriff, and that on the docket .entries of the issual of the said writs are also the following: on the one, “made by sale of real estate,” on the other, “ N. B. balance;” and shall find that the said writs of fieri facias, after diligent search by the proper officers, cannot be found, and are lost; and shall also find that the said Jacob Kerslmer, after the said sale testified to by Gustavus, the defendant, in frequent conversations with Eosanna Witmer, declared that his estates had been sold out by the sheriff to Andrew Kcrshner, or words to that effect, and also declared to Peter Eichelberger that the sheriff had sold him out, and that lie was worth nothing, or words to that effect, but shall also further find that the said Jacob Kerslmer remained in continued and uninterrupted possession of the said estates, farming, using and enjoying them, from the year 1827, the time of the supposed sale, until February, 1838, -when he died, and that after his death his widow and only child, (if the jury find a widow and only child survived him,) continued and remained in possession of the premises uninterruptedly and continually from the death of the said Jacob until sometime in the year 1854 or 1855, when they removed therefrom at the instance and persuasion of Gustavus, the defendant, and that after the death of the said Jacob the said Gustavus rented the premises, on which the said Jacob had resided, to tenants, and received the rents therefor, and that during all this time Andrew Kcrshner, the plaintiff in the executions aforesaid, was alive, living about three miles from the place of residence of the said Jacob, during which time he did not enter into possession of the said lands or estates, or any part thereof, nor demand or receive from the said Jacob any rents, issues or profits of the said estates during his lifetime, and that he did not, after liis death, enter into possession of any part of the said estates or lands, then the defendant has failed to show a legal and subsisting outstanding title in Andrew Kerslmer, the plaintiff in the said executions; and if the jury further find that the plaintiff is the only child and heir-at-law of the said Jacob, and is above the age of twenty-one years, and that the said Jacob was in the continual and uninterrupted possession of the lands and estates sued for in this action, as co-tenant with the defendant, Gusiavus, from the year 1815 until February, 1838, when he died, then the plaintiff is entitled to recover. 2. That a sheriff’s sale of real estate, under the provisions of the Statute of Frauds, must be evidenced by a memorandum thereof, in writing, or the sheriff’s return to the execution under which the land was sold, describing the same with sufficient precision to identify it, or the sheriff’s deed, particularly describing and conveying the same to the purchaser; and that unless the jury find that the sale of the lands in controversy, alleged to have been made by the sheriff to Andrew •Kershner, deceased, are thus evidenced, there is no legal and competent evidence of said sale before them, and they must find for the plaintiff. 3. If the jury find the facts set out in the plaintiff’s first prayer, which are hereby referred to and made part of this, and further find that Jacob Kershner, the father of the plaintiff, was in possession of the said lands after the alleged sale in the same manner that he was prior thereto, and that he so continued from that time, to wit, from 1827 down to the month of February, 1838, when he died intestate in the same possession; and shall also find that his widow and infant son, the plaintiff in this case, remained on the said farm after the death of said Jacob, down to the year 1854 or 1855, occupying the mansion-house, and drawing their support from the . said farm, and that they relinquished their possession thereof at the instance of the defendant in this cause, and that Andrew Kershner, the alleged purchaser at the supposed sheriff’s sale, did not enter into possession of the said lands or any part of them, and shall further find that the defendant, Gustavus Kershner, repeatedly, from the year 1838 down to the year 1854 or 1855, admitted that Jacob Kershner, the father of the plaintiff in this cause, was co-owner of the said lands with him, and also admitted, after the death of' said Jacob, that the plaintiff in this action was entitled to the one undivided half of the lands held by him and his brother Jacob, as co-tenants or owners, in the lifetime of the said Jacob, then the defendant has failed to show an ontstanding title in Andrew Kersliner, deceased, and the plaintiff is entitled to recover. 4. If the jury find the facts set out in the first prayer of the plaintiff, and also those set out in the third prayer, then there is evidence from which the jury may find against the presumption, that there was a valid and effectual seizure and sale of the lands in controversy in this case, by the sheriff to Andrew Kershner, and if the jury so-find, the plaintiff is entitled to recover. 5. If the jury find the facts stated in the first and third prayers of the plaintiff, and further find that the clerks of the Washington County Court did keep a record-book in which was recorded all the proceedings of the said Court upon judgments rendered, and upon which executions issued, by virtue of which lauds were sold by the sheriff, and that the said record-books purport to contain the record of proceedings of such judgments and sales made from the year 1819 on to 1829, covering the time and year in which the supposed sale of the lauds in controversy was made to Andrew Kershner, but that examinations and searches have been made in the said book for the record of the judgments and proceedings of the sheriff in the two judgments shown in evidence by the defendant, and that no such record of judgments, fieri facias and return of the sheriff can be found therein, then the want of such record of proceedings in respect to the two judgments of Andrew Kershner against Jacob Kershner, together with the other facts set out in the said prayer, are sufficient to rebut the presumption of sale to Andrew Kershner, as contended for by the defendants, and the jury ought not to presume a sale. The defendants prayed the Court to instruct the jury as follows: 1. That in a sale of real estate by a sheriff under an execution, the title of the property levied on and sold passes by the sale and by operation of law to the purchaser, and that a deed from the sheriff to the purchaser is not necessary to pass the title. 2. That if the jury shall believe from the evidence in this cause that there are docket entries upon the judicial dockets of the clerk of Washington County Court, at March Term, 1827, of said Court, corresponding with the judgments obtained by Andrew Kershner against Jacob Kershner, the father of the plaintiff, Andrew J. Kershner, at March Term, 1820, of said Court, given in evidence by the defendants, and that there are short returns on said docket entries, in the handwriting of one of the deputy clerks in the office of the clerk of said Court at the time, to the effect that one of said executions had been made by a sale of real estate, and on the other that $38.34 had been made, and nulla bona for the balance; and shall further believe that said docket entries imported the existence and due return of said writs, and that there were similar docket entries, corresponding with said judgments, to every term of said Court from March Term, 1821, to November Term, 1826, both inclusive; and shall also believe that Alexander Neill was sheriff of said Washington county at said March Term, 1827, and that he advertised all the right, interest and estate of Jacob Kershner, in the land and premises declared for in this suit to be sold by virtue of two executions issued out of said Court and to him directed, on two judgments of said Court, against Jacob Kershner, at the suit of Andrew Kershner, and another at the suit of Samuel Shatt, use of David Cushwa, against said Jacob, on the 14th day of April, 1827, and that the said Neill, as sheriff, did sell all said-Jacob’s interest in and to said land and premises named in said advertisement, at the time and place therein named, and that said Andrew attended said sale and bid on said interest, and that said interest in said land and premises was knocked down to said Andrew as the highest bidder therefor; and shall further believe that said Jacob Kershner afterwards declared that he had been sold out at sheriff’s sale, and that the said Andrew Kershner had bought his property at sheriff’s sale; and shall also believe that writs of fieri facias answering to said entries on said judicial docket at March Term, 1827, with any papers that may have belonged to them, have been diligently searched for among the papers of the office of said clerk of said Court, by the proper persons in charge of the same, and also among the papers of said Alexander Neill, and that the same cannot and have not been found, and that the said Alexander Neill and also the clerk of said Court and his deputies in the office at the time said docket entries were made, are dead; that the said Jacob declared to different persons that he had been sold out at Sheriff’s sale, and that he had nothing; that he was greatly embarrassed and unable to pay his debts; that the said Jacob did die indebted to various persons by judgments and otherwise, and that he had no property at the time of his death ; that there was no administration on his estate, and no guardianship for his son, Andrew J. Kerslmer, the plaintiff in this cause, then the said facts and circumstances, if the jury find them, are evidence upon which the jury may ground the presumption that writs o £ fieri facias, corresponding with said entries on said judicial docket at March Term, 1827, of said Court, did issue on said judgments of said Andrew Kerslmer, against the goods and chattels, lands and tenements of said Jacob Kerslmer, and were delivered to and placed in the hands of said Alexander Neill, as sheriff of said county, to be executed, and that they were levied on the interest of said Jacob in and to said lands, and that he sold the same to said Andrew Kerslmer at said sheriff’s sale, and that said Neill, as sheriff, made due return of said writs of fieri facias accordingly; and that if the jury shall so believe and presume, then the title of the said Jacob in and to said interest in the said, lands passed out of the said Jacob by said sale, and the plaintiff cannot recover in this action, and the verdict should be for the defendants. 3. That if the jury believe the facts set out in the defendants’ second prayer, and shall also believe that the said Andrew Kershner. exercised acts of ownership over the interest of said Jacob, in and to said land, after said Jacob’s death, by receiving rents and profits therefrom, and that in the year 1849, he conveyed the same to Gustavus Kershner and William Ditto, by the deed of the 2d of April, of that year, given in evidence, with the answer of said Gustavus in chancery also given in evidence, then the said jury are not only at liberty to presume the existence of and due returns to the writs of fieri facias of March Term, 1827, as stated in the foregoing second prayer, but the contract of sale by the sheriff became executed in said Andrew Kershner, and the title to said lands of the said Jacob vested in him by force of said facts, without regard to the requirements of the Statute of Frauds, and the plaintiff Avould not be entitled to recover, but the verdict must be for the defendants. 4. That if the jury believe the facts set out in the second prayer, or in the second and third prayers, then Jacob Kershner and his son, the plaintiff claiming under him, are estopped and precluded from questioning the sale by the sheriff to said Andrew, and the plaintiff would not be entitled to recover in this action. 5. That the omission of the clerk of Washington County Court to record the judgments-of Andrew Kershner vs. Jacob Kershner, given in evidence in this cause, with all proceedings thereunder, as required of him by the Act of 1817, ch. 119,. section 7, if the jury find such proceedings and omission, does not affect, or impair, or invalidate the title acquired by the purchase at said sheriff's sale, if the jury find such sale to have been made, but the said title remains as valid and effectual as if said judgments and proceedings thereunder had been duly recorded agreeably to the'requirements of said Act of Assembly. 6. That if the jury believe the facts set out in the second prayer, or in the second and third prayers, then said facts amount to or create a .’‘presumption of law, that said sale by the sheriff did take place, and was duly returned by him, and that in such case the jury are bound to find for the defendants. The Court, (Perry and Motter, J.) granted the fourth prayer of the plaintiff and rejected the others; and granted the second and fourth prayers of the defendants and rejected the others. To the granting of the plaintiff's fourth prayer and to the .refusal by the Court to grant the first, third, fifth, and sixth prayers of the defendants, they excepted. The jury rendered a verdict for the plaintiff and assessed the damage at one cent. Judgment on verdict. The defendants appealed. W illiatn Kurfman was made a party defendant because of his purchase of a portion of the lands from Gustavus Kershncr and William Ditto.