
    Thomas Evans vs. Herbert Hinds.
    The docket of the Court in the sutn. pro. jurisdiction, with this entry, "Alex. Gregg vs. R. J. Gregg—Decree for Plaintiff,” is not such evidence of a judgment as will enable a purchaser of land at sheriff’s sale to recover in an action of trespass to try titles.
    Before Earle, J., at Marion, Spring Term, 1835.
    Trespass to try titles. Both parties derived title under Robert J. Gregg. The plaintiff claimed under a sheriff’s sale. The original judgment and execution were not produced. They were supplied by the following evidence:* The sale recited in the deed, was stated to have been under an execution, Alex. Gregg vs. Robert J. Gregg. The clerk of the Court testified that there are no minutes of the Court of that day which contain entries of decrees under the summary jurisdiction, of which the only evidence now to be found in the office is the dockets. That he cannot find the execution in the above case ; thinks all the executions against Gregg are now in Court that can be found. If such an one is in his office, it is not in its proper place. On this evidence the Court admitted the following entry from the docket in evidence :
    Docket of March Term, 1822.
    
      
    
    Original execution book of the sheriff, Tart, contained the following entries :
    
      
    
    Levy on one hundred acres of land adjoining lands of R. Howard. Offered the land for sale in October, and no bid to be had: 6th April, 1824, sold the above land, and knocked off to Elly (lasque, at ten dollars, and same paid ; sheriff’s deed to Casque, 6th April, 1824. lie conveyed to plaintiff, 22d September, 1830.
    Defendant also claimed under sheriff’s sale. He introduced a record and judgment of Richard Howard vs. R. J. Gregg, on a bond, dated Aug. 17, 1822, for $1000, judgment 31st Oct., 1825, execution same day; sale 3d Jan., 1826, to Richard Howard ; sheriff’s deed same day ; recorded, 27th January, 1829.
    Several objections were made to the plaintiff’s recovery, besides the want of proof as to the existence and loss of the judgment and execution, and the insufficiency of the evidence by which they were supplied. It was alleged the execution of Alex. Gregg vs. R. J. Gregg, was satisfied. The proof was on that point as follows : Wm. Gregg deposed that Alex. Gregg told him before the sale of the land, that Tart, the sheriff, had paid him up; and afterwards, in the sheriff’s office, Howard inquired if he had got his money. He said yes, I have got it ; and Tart said he had paid it. Howard said, I am glad of it, for now my mortgage is good. On the same point, R. J. Gregg swore that it was not paid off. There was certainly no proof of *the payment of costs, for whicli the land might have been sold, as well as for the debt itself. The ground assumed was, that the sheriff himself had paid it off with liis own funds, and therefore the execution was inoperative ; and it is well settled that the sheriff cannot in general keep open an execution which he has himself paid off; against the defendant he could not enforce it. But if the defendant make no objection, can third persons ? It was objected further, that the execution of Gregg vs. Gregg, was out of date, and therefore inoperative, and the levy was void. It was lodged 4th April, 1822. The sale was made 6th April, 1824. The levy was without date; if made within the year and day which the execution had to run, then the authority to sell was complete, even after the lapse of that period, without renewal. There was no proof on the subject. I submitted to the jury that in the absence of proof, the general principal that public officers will be presumed to have done their duty, until the contrary appear, might aid the plaintiff’s case. That it was the duty of the sheriff to levy the execution or return it within the year and day ; if levied, it was not necessary to return it, and therefore as he afterwards proceeded to sell, they might presume that the levy was made within the lawful time. Another objection to the plaintiff’s recovery was, that his deed from the sheriff had never been recorded. On this point it was proved by Elly Gasque, that Howard knew of his having purchased the land before he bought; that he paid taxes for the land, and had a tenant on it. I submitted to the jury whether Howard had explicit notice of Gasque’s deed, and instructed them if he had, that the deed was valid without recording.
    On the question of fraud in the sale to Gasque, which was much relied on, the evidence was fairly submitted to the jury. Many of the circumstances accompanying the transaction were suspicious. The land was worth six or seven hundred dollars, and sold for ten dollars. In the other transactions about the same time, concerning the negroes of Gregg, and in which the sheriff and Gasque were active agents, there can be no doubt that there was fraud. Yet, both Gasque and Gregg swore that there was no understanding or agreement; that Gasque paid his own money for the land, which has never been refunded to him by any one, and after paid, sold the land to pay his own debts.
    I refer the Court to my notes on this point, and to an abstract of the entries in the sheriff’s books.
    The jury found for the plaintiff, aud the defendant appeals, on the grounds annexed:
    1st, Because no judgment of the Court was given in evidence, or produced, or shown to have existed, which would authorize a sale of the land by Tart, sheriff', to Elly Gasque.
    «2d. Because it did not appear that the execution by which the land is pretended to have been sold, was of active force at the time of the levy or the sale. It was lodged 4-tli April, 1822, and the land sold 6th April, 1824. The presumption is, it was not of force, and the Judge should have so charged.
    3d. Because the cause of Alexander Gregg vs. Robert J. Gregg, by virtue of which the sale of the land was attempted, was paid by sheriff' Tart, to the plaintiff’, long- before the sale.
    4th. Because the deed made by sheriff Tart, to Elly Gasque, not being recorded, as the law requires, was absolutely null and void as to creditors, of whom Mr. Howard, under whom the defendant claims, was one.
    5th. Because ¡lie deed from Tart to Gasque, not being recorded, as required by law, was void as to subsequent purchasers, of whom Howard under whom defendant claims, was one, and no notice to Howard before his purchase was proved.
    6th. Because the sale by sheriff Tart, and purchase by Gasque, was for the benefit of Tart, the sheriff', and ltobert J. Gregg the defendant in execution, and therefore fraudulent and void, and his Honor should have so charged the jury.
    7th. Because the verdict of the jury, was contrary to law and evidence.
    
      See 5 Rich. 372; 10 Rich. 395. An.
    
    Appeal determined at Columbia, Fall Term, 1835.
    
      Graham, for the motion. Moses, contra.
   Curia, per

O’Neall, J.

The first ground is fatal to the plaintiff’s action. For until the judgment was produced, or its existence and loss proved, the plaintiff could take nothing from his purchase at sheriff’s sale. The evidence clearly shows that no judgment in fact ever existed, and hence it follows that the execution and sale under it, were alike unauthorized and wrongful. The case of McCall vs. Boatwright, (2 Hill, 438,) cannot be distinguished from this, and its authority supercedes the necessity of argument or investigation.

The motion for nonsuit is granted.

Johnson and Harper, JJ., concurred.  