
    David Hopkins against Allan De Graffenreid.
    Columbia,
    1802.
    1 j¡ay.
    
    TRESPASS to try title to land. Motion to set aside nonsuit.
    This was a case from the former district of Pinckney, in which there had been a former nonsuit on account of the plaintiff’s failure in proving a deed ; (see that case, ante, 187.) and on the second trial after the former nonsuit was set aside, the plaintiff was nonsuited a second time for not producing the fi. fa. by virtue of which the sheriff of Old Camden district, had sold the premises in question to the plaintiff. The Judge (Grimke) who presided when this second trial came on, was of opinion, that the fi.fa. was an essential link in the chain of title to shew the sheriff’s au~ thority for selling; and as that was not produced, or its loss satisfactorily accounted for, he directed a second nonsuit.
    This, therefore, was a motion to set aside this second nonsuit,
    Mr. Smith, for the motion,
    took two grounds ; 1st. That the presiding Judge ordered this nonsuit without the consent of the plaintiff in the action, who was willing to risk his case with the jury ; and, 2dly. That the execution, or fi.fa. was not essentially necessary to be shewn on a trial for lands, where a title depends on a sheriff’s deed or conveyance.
    Upon the first ground, he contended, that when a jury is once sworn upon a cause and charged with the evidence, the judge cannot discharge them from that cause till they give their verdict without the plaintiff’s consent. That if the plaintiff thought proper to risk his cause to a jury upon such evidence as he could procure, or such as he thought would bear him out in his case, a judge should not step in between him and the jury and prevent them from giving in their verdict; nor can a judge regularly order the plaintiff to be nonsuited against his will and consent, so as to deprive him by such order of the benefit of the inestimable trial by a jury of the country. 2 Durnford anc^East, 275. 281.
    2dly. In respect to the fi. fa. he said, it was not essentially necessary to be produced on the trial, where the title depends upon a sheriff’s deed. It is the judgment that binds the lands of a defendant and makes them liable for the debt of the plaintiff; an exemplification of which was produced on the trial. This proved that the lands in question were bound for the satisfaction of the judgment; the execution afterwards, was no more than the mandatory of the court, commanding the sheriff to give the plaintiff the fruits of his judgment, by selling the land and raising the money to be paid aver to the plaintiff. This was only the •sheriff’s warrant for his proceedings, and a bona fide purchaser had nothing to do with it. That a sheriff was a public officer of great trust and confidence, entrusted with the final execution of the law, and therefore the law would always presume strongly in his favour, or in the regularity of his proceedings, until'the contrary was made to appear. In the deed offered in evidence, the sheriff had recited the suit and judgment, and referred to them on record as the foundation of all the proceedings, and the right of the plaintiff in this suit. He then recited the execution or fi.fa. and levy on the lands; next the advertising, and sale to the plaintiff, as the highest bidder. Why stop at the execution and require its production ? Why not call for proof of the levy, the advertising and sale to the purchaser ? They are all as essentially necessary as the execution itself; but this would be going too far, and would look too much like making trifling objections without weight or substance. The answer to all these objections, however, and the truth is., that they are all the necessary concomitants and attendants on such kind of legal transactions, without which the plaintiff in an action never could gain the fruits and ends of his suit; and, thetefore, the law rejects all these little niceties as unworthy of its notice, and will presume in favour of such important rights, and also in favour of an officer of such high trust, that all has been done which ought to have been done ; and these are not light presumptions, founded on trivial circumstances, but strong presumptions arising ' from the nature and course of proceedings by executive officers. Besides, he further observed, that it was well i known both to the bench and the bar, that a sheriff in the execution of his duty, is very often obliged to make partial sales of lands where a defendant has a number of tracts, one to A. and another to B. and so on to others again, and still the proceeds may not be sufficient to pay off the amount of the plaintiff’s judgment. Now, how is it possible in such a case, that any one of the purchasers can get possession of the execution under which these partial sales were made ? It is therefore most evident, that the execution makes no part of the purchaser’s title under a sheriff’s deed, nor can any purchaser compel a sheriff to deliver-it over to him ; on the contrary, the sheriff is bound in duty to return all such executions into the court from which they issued, in order that the court may see how much of the judgment is satisfied and paid over to the plaintiff, and how much is still due in cases where further proceedings may be necessary. But, he said, it was notorious that the sheriffs and their deputies had been very remiss in returning executions into court. It was one of the great evils complained of in this country previous to the act of 1791. Hundreds of executions have either been kept back, lost or mislaid in the course of this irregularity, that cannot possibly be produced or accounted for by innocent purchasers. To call in question, therefore, the rights of parties to lands fairly pur» chased at sheriffs’ sales for the want of the execution, under all these circumstances, would be the height of injustice, and would jeopardize the greatest part of the titles to lands in Carolina, purchased at said sales.
    Mr. Nott, in reply,
    urged that the execution should be produced, as probably it might appear that the debt had been satisfied. If so, then the sheriff had no right to sell. At all events, it should be produced to shew the sheriff’s authority to seize and sell? and that the sale was made in pursuance of that authority, and while the execution was in full force ; for if the sale was made after the active energy of the execution had ceased, the sala would be illegal. He quoted the case of Bullock and Thompson, at Ninety-Sixs where he said, he understood it had been determined, that the execution should be produced, and a sheriff’s deed had been rejected on account of its non-production.
    On the other point respecting the nonsuit, he observed, that it was the province of the judges to determine the law, and juries the facts. That if it appeared to a judge that n® legal evidence was offered to support a suit, or, as in the present case, the plaintiff’s title, of which the judge only was competent to determine, it was his duty to direct a non-suit ; for, it would be a nugatory act to send a case to a jury, where there was no legal evidence to support it ; and whatever the old practice might have been in England, of the judges not ordering a nonsuit without consent of the-plaintiff, when they discovered a defect of evidence, it was. neither founded in good sense nor sound reason; and modern adjudications have determined otherwise. In this country it is invariably the practice for the judges, in all cases, to exercise that discretionary power which the law has vested in them, wherever they have discovered a defect of evidence to support the plaintiff’s claim.
    Falconer, on the part of the defendant,
    supported Mr. Nott, and argued, that whatever might have been the conduct of sheriffs hitherto, in not returning executions into the clerks’ offices, it should not prejudice the citizens, whose rights were to be called into question by sheriffs’ sales. The sheriff’s authority to sell ought to be shewn, by which he was to devest a defendant of his landed property, and transfer it to another. Nothing, should be left to presumption or intendment, which went to deprive a man of his freehold and inheritance. There were few or no cases in the English reporters to aid us in a case of this kind, as landed estates could only be extended for debt in that country. Our country must, therefore, resort to principles to bear them out in their decisions here, and where no power is shewn to sell, none is to be presumed.
    Sec the case Frost, ants^. 1£6‘ •
   The majority of the Judges, in this case, after due consideration, were of opinion, that the nonsuit ought to be set aside, and the cause once more reinstated on the docket for trial, on the second ground taken in support of this mo- ' t'ion.

On the first ground, however, they concurred in opinion with the other judges, in principle, that on a trial before a jury, wherever it appears that the evidence is insufficient to make out the plaintiff’s case, or where there is a total failure of proof necessary for that purpose, it is the duty of the judge to order a nonsuit, whether the plaintiff consent or not, because there can be nothing to send to the jury to found their verdict upon, and, consequently, any verdict they could give would be a nugatory act. That this point had been determined in the case of Brown and Frost, after solemn argument, in Charleston, in 1798, and it had been the invariable practice both before and since.

On the second ground, with respect to the production of the writ oí ft. fa. on the trial of an issue, where the plaintiff’s title to lands depends upon a sheriff’s deed, they were of opinion that it was not necessary to produce it. That these sales being made by operation of law, and by a public officer, entrusted with the execution of the law, duly appointed and sworn for that purpose, the same degree of faith and credit is due to his deed, under hand and seal, as could or ought to be given to any return on the back of an execution, if it had been produced, for the one act is as much the act ©f the sheriff, and as much within the line of his official duty, as the other ; and they are equally entitled to credit in the eye of the law.

In private transactions, where men act as agents cr attorneys for each' other, in pursuance of private powers, their authority must be shewn, and nothing is to be presumed in such cases but what is proved. Whereas, in the execution of the law, and in pursuance ef a. public authority, founded on the proceedings of the courts of justice, every thing concomitant with the execution of a public trust by the ofSeers of justice is to be presumed in their favour, until irregularities or violations of their duty are shewn ; especially after a lapse of years, when it would be as difficult to shew that every punctilio of the law was complied with in making a sheriff’s sale, as it would be to shew that all the requisites of the rules and practice of the court had been complied with before the judgment was entered up.

The recitals in a sheriff’s deed, under his hand and seal, ought to be received as an official return of his proceedings in the final completion of the suit, as much as his return to any part of the proceedings in the cause, from the service of the first process down to his giving the plaintiff the fruits of his judgment; and the law will not presume that the sheriff has done wrong, or certified what is not true. Another strong reason why great faith and credit ought to be given to so high and confidential an officer of justice, is, that: it very frequently happens that partial sales are made under the same execution, and that several separate tracts of land are sold to different persons. It is, therefore, impossible that each purchaser can have the execution delivered over to him. This circumstance is a strong proof that the law never intended nor contemplated that the execution or fi.fa. under which lands were sold, should be delivered to the purchaser, or make any part of his title. On the contrary, the law requires that the execution should be returned into the prothonotary’r, office by the sheriff, that the court might see that justice was done the plaintiff in the action; and if need should require, that further process might be awarded for that purpose, if the plaintiff was not fully satisfied. It is evident, therefore, that this writ is under the power of the sheriff, until this final return is made. A bona fide purchaser has no control over it; and it would be unjust if he should suffer for any neglect or omission of the sheriff, after he had fairly and honestly paid away the purchase-money, and obtained his deed.

See thecas^ of Bulloch v* Thompson} vol. 1. p. 364. .Riley's edit.

It is a notorious fact, however, that the sheriffs of this country, and their deputies, were very negligent in making returns to executions, in many parts of the country, after the revolution ; and many of them still are so, notwithstanding the act of 1791, which was intended, among other things, to guard against that inconvenience. To make their misconduct or irregularities the ground of shaking the titles of those citizens who hold lands under sheriffs’ deeds, would be extremely injurious to a large portion of the citizens of this country, and subversive of the ends of justice.

The case of Bullock and Thompson, quoted in the course of the argument, did not turn on the production or non-production of the fi. fa. under which the land was supposed to have been sold, but on the want of an exemplification of a judgment, which it was alleged had been obtained, and which, consequently, bound the lands then in question ; and it was upon that ground that the sheriff’s deed, which was then offered in evidence, was rejected, as there was nothing before the court to evince a judgment or any subsequent proceedings. There was nothing in that case which had any application to the one now under consideration.

Mr. Justice Waties dissented from this opinion of the majority of the judges, and agreed with the presiding judge on the trial, (Grimke,) that the fi.fa. was an indispensable requisite in the chain of title under a sheriff’s deed, and that it should be produced, or its loss satisfactorily accounted for; and, therefore, that the nonsuit was very regularly and. properly ordered.

Rule for setting aside the nonsuit, and reinstating the cause on the docket a second time, made absolute.

Present, Grimke, Waties, Bay, Johnson, Trezevant and Brevard.  