Foulk v. Colburn

Buss, Judge,

delivered the opinion of the court.

The plaintiff seeks to recover certain real' estate, and both parties claim title through execution sales upon different judgments in attachment against one McCown. The original levy in the attachment proceedings under which defendant holds, is claimed to have been made previous to that in the other case, and the questions raised pertain exclusively to the defendant’s title. His deed from the sheriff makes no allusion to the original levy, so that it does not. appear from it when it was made; and the plaintiff claims that this is a fatal omission.

The statute does not specify what recitals in sales upon attachment a sheriff’s deed shall contain. After the judgment, a special fi. fa. issues to sell the property seized, and the deed is governed by the provisions of the statute upon executions. The one under consideration is regular unless in the particular named. The judgment and order of sale are described, but the deed does not mention the date of the original levy', nor does the judgment or order refer to it; so that, without reference to the original writ and the return of the sheriff upon it, it cannot be told when the property was seized.

It would seem that the special execution, like an ordinary venditioni exponas, would naturally refer to the seizure of the property as well as to the judgment and order of sale. Both are proceedings that prece.de the sale, and without which no title will pass. Yet it is to be presumed that the court had authority to issue the order — that it would not have been issued unless there had been a levy upon the property ordered to be sold ■— and the order itself must be held to be sufficient authority for the officer to proceed. The statute gives no form for a special fi. fa., nor does it direct what recitals it shall contain, or require it to describe the manner in which the property came within the control of the court. A common fieri facias simply refers to the judgment, and in analogy to that the writ under consideration refers to the judgment and the order to sell, describing the property; and we cannot say that it is not a special fieri facias under *229 the statute, though it neglect to show the authority of the court to make the order.

If it is not essential that the order of sale describe the levy, then it cannot be required in the deed; for the recitals called for by the statute are-only such particulars as are “recited in the execution” (Gen. Stat. 1865, ch. 160, § 54; Wagn. Stat. 612), and this is necessarily so, inasmuch as no other paper is in the hands of the sheriff. The deed, then, is not vititiated by failing to recite the original levy; and when the date of such levy becomes material, resort must be had to the record.

Upon the trial the defendant, in addition to his deed, offered in evidence the judgment, proved that the original attachment writ, with its return, had been lost from the files, and then showed by the testimony of the sheriff who had served it, the date of the writ and the date of the levy, the sheriff giving a copy of his return. But the court refused to consider any evidence except the deed and its recitals; and hence, as defendant’s deed did not recite the levy, gave judgment for the plaintiff. The court did not hold the defendant’s deed to be void, but refused to make it relate back beyond the date of the judgment, for the reason that it recited no previous proceedings. In this it was clearly wrong, for unless there had been a valid levy the deed was worthless, as having nothing to lean upon; and if good, it related back to the levy upon which it depended. The levy was its life -and the source of the title conveyed by it.

It is not easy to determine the grounds upon which the court based its opinion. It might have held that the deed did not relate back to the levy, because there was nothing of record to notify the plaintiff when it was made, or whether made at all. It is true most of the original files were lost; but is it true that when the process and pleadings in an action are mislaid or destroyed, although the judgment remains duly entered in the book of orders and judgment, and which could not have been lawfully rendered without such process and pleadings, that no one is notified of the proceedings in the action ? In the present case the loss was not the fault of the defendant, and there was enough preserved upon the record and recited in the deed to advise the *230 plaintiff that there must have been a writ and levy as well as pleadings. The evidence shows that the plaintiff, before the purchase, actually searched the clerk’s office to find the missing files. He was put upon inquiry in relation to the levy, but did not pursue it far enough to ascertain what has appeared in evidence. Were it the defendant’s fault that the plaintiff was obliged to go beyond the clerk’s office for information, he might have been excused. But the records being lost without his fault, all parties were bound by what they could be proved to contain. The loss should not be visited upon the defendant; otherwise the title to our estates would in' many cases be made to depend upon the carefulness or fidelity of clerks of courts, or perhaps upon the honesty of those intrusted with, or who might obtain access to the public records.

Objection is made to the parol evidence establishing the contents of the lost record. It is true that an action cannot be maintained upon a lost record without first establishing or restoring it by a direct proceeding, for the reason that if its existence is put in issue, the court passes upon it by an inspection of the record. (Walton v. McKesson, 64 N. C. 77 .) Nor will one be permitted to proceed in the prosecution of a suit and take a default upon proof of loss and contents of the petition, for the defendant has no opportunity to answer until it is restored. (Brown v. King, 39 Mo. 380 .) But ordinarily, if a record is lost “its contents may be proved like any other document, by any secondary evidence, when the case does not from its nature disclose the existence of other and better evidence.” (Greenl. Ev., § 509; Graham v. O’Fallon, 3 Mo. 507 ; Ravenscroft v. Giboney, 2 Mo. 1 .)

The judgment of the District Court, reversing that of the Court of Common Pleas, will be affirmed.

The other judges concur.