
    PHILLIPS against SHIFFER.
    
      Supreme Court, First Department, First District;
    
    
      General Term, March, 1873.
    . Sheriff’s Sale.—Omission to Return Execution. — Assignment of Certificate of Sale.— Sheriff’s Deed.—Recitals as Evidence.
    Although the recitals in a sheriff’s deed of land sold on execution, that execution was issued and delivered to him, and that he sold the land under it, may not alone be proof of those facts, yet together with proof by the testimony of the sheriff to the same facts, corroborated by the production of his entries in his register, they are sufficient, after the lapse of many years.
    The neglect of the sheriff to return an execution does not invalidate the title of a purchaser of land, at a sale regularly made under the execution.
    After selling land on execution, the sheriff, by giving a deed, reciting an assignment of the certificate of sale, and conveying the land to the assignee without requiring the proof and filing of such assignment pursuant to the statute, waives those formalities; _ and the title of the grantee is not affected by the omission to prove and file the assignment.
    The case of People v. Ransom, 2 N. Y. (2 Comst.), 490, while it holds that the sheriff cannot be compelled to convey to an assignee who does not comply with the act of 1835, does not decide that a conveyance made without such compliance is ineffectual.
    Appeal from a judgment.
    Lewis J. Phillips brought this action in . the supreme court against Samuel Shiffer, to compel specific performance of a contract for the purchase of real property in the city of New York.
    The defendant, the purchaser, declined to perform on the ground that plaintiff’s title was defeetive.
    
      The plaintiff’s title was derived from one Harriet M. Wiswall, who took title by a sheriff’s deed made in 1835. , '
    The defendant refused to accept the conveyance on the grounds : 1. That there was no legal evidence by record or otherwise that any writ of fieri facias had been issued to the sheriff upon the judgment under which the premises purported to have been sold. 2. That the sheriff’s deed to Harriet M. Wiswall was invalid, because executed before said Wiswall had caused the assignments to herself and to other intermediate assignees to be acknowledged or proved, and filed in accordance with Laws of 1835, ch. 189, § 2. 3. That the sheriff acted without authority of law in executing the deed of the premises to her, inasmuch as it appeared by certificates of sale that he sold the premises to Daniel Robert- and Isaac H. Underhill, there being no legal evidence, of record, or otherwise, proving any assignments of the certificates of sale from Robert and Underhill to Mrs. Wiswall.
    In other respects the title was admittedly good.
    On the trial it appeared by the testimony of Jacob Westervelt that in 1832 and 1833, he was sheriff of the city and county of Hew York, that he acted as sheriff in making a sale of the premises on afi. fa., issued to him out of the superior court of the city of Hew York, on December 24, 1882, on a judgment at the suit of Benjamin Brewster v. New York & Harlem Spring Water Co., in an action for assumpsit for three hundred and fourteen dollars and ten cents.
    The register then kept by the witness as sheriff was produced, and the entries therein, which he testified were made at the time of receiving the execution, were read, showing in substance the facts above stated,
    Two certificates of sale executed by him were-also produced and proved, which recited the sales under the fi. fa., and the. purchase by. Robert and Underhill respectively of parcels of said premises. These were executed on February 25, 1883, and filed March 6, •1833.
    A deed bearing date May 28, 1835, by Westervelt, as late sheriff, to Harnett M. Wiswall, and in due form and properly acknowledged, was also put in evidence. This deed contained full recitals of the fi.fa. in the suit above mentioned ; of the sale of February 25,1833, the purchase by Robert and Underhill, respectively, the assignment by Robert and Underhill, severally, of their right, title and interest in the several lots and in the certificates of sale to Enoch Wiswall and Francis Price, and the assignment by Enoch Wiswall to Francis Price ; and by Price to Harriet M. Wiswall on May 26,1835.
    Each of the several assignments was recited to have been made by an instrument in writing under the hand and seal of the assignors, and- all, except the one to Mrs. Wiswall, bore date prior to May, 1835.
    None of the assignments appeared to have been filed in the county clerk’s office, and none of them were produced.
    The sheriff was examined as a witness, and testified that he always required the production and proof of assignments before he conveyed lands sold by him on execution, to an assignee, and would not have recited the assignment in a deed unless the fact of assignment had been satisfactorily proved to him; that the certificate and assignment were delivered to him, and that it was not his custom to keep or file them, and that he destroyed the assignment after the deed was executed and delivered.
    The writ of fieri facias under which the sale was made could not be found in the office of the clerk of the superior court, and no entry of its return or satisfaction appeared on the docket of the judgment.
    The sheriff also gave evidence tending to show that it was not returned, and proved that the deputy sheriff, in whose particular charge it was put, was a careless man and was dead, and that he did not return the writ to the sheriff.
    By sundry mesne conveyances the plaintiff acquired the title of Harriett M. Wiswall.
    On this evidence the referee found the issuing and delivery in due form to the sheriff of the fi. fa., the sale thereunder, and the delivery of the certificates, the execution of the assignments to Mrs. Wiswall, and that the sheriff duly conveyed to her the premises sold, and the several other material facts alleged in the complaint (of which due proof had been given) and deduced as a conclusion of law that the defendant was bound specifically to perform the agreement, and that plaintiff was entitled to judgment accordingly.
    Judgment having been entered, defendant appealed.
    
      M. A. Kursheedt, for defendant, appellant,
    Insisted that the execution must be proved, and that the recitals and the register were not evidence of the proceedings, and that the omission to file the assignments was fatal; citing the cases mentioned in the following opinion. Also, that the presumption that the sheriff would not have executed the deed unless he was authorized to do so, is not sufficient to uphold the deed (Bunner v. Eastman, 50 Barb., 639).
    
      Adolph L. Sanger, for plaintiff, respondent;
    Cited (besides the cases in the opinion) Leland v. Cameron, 31 N. Y., 115; Bank of North America v. Embury, 33 Barb., 323; S. C., 21 How. Pr., 14; Wood v. Chapin, 3 N. Y. (3 Kern.), 509; Jackson v. Schafer, 11 Johns. 513; Hartwell v. Root, 19 Johns., 345; Sperling v. Levy, 1 Daly, 95; Mosher v. Heydick, 45 Barb., 549; Clark v. Lyman, 10 Pick., 47; Boynton v. Willard, 10 Pick., 169; Cai. Cas., 18; Cow. and Hill’s Notes, 297, 362). That the sheriff is presumed to do his duty ; Ld. Halifax Case, Buller's Nisi P., 298; 12 Wheat., 69, 70; Hartwell v. Root, 19 Johns., 345; Jackson v. Schafer, 11 Johns., 517; Phil. Ev., 151.
   By the Court.—Davis, J.

[After stating above facts.]—Nearly forty years had elapsed between the delivery of the JL fa. to the sheriff and his sale thereunder, and the making of the contract between the parties to this suit; and the deed of the sheriff was executed in May, 1835, since when the plaintiff and they from whom he derives title have enjoyed undisturbed ownership, having clear record title except as affected by the defects alleged by the defendant.

The facts of the case are to be looked at through the atmosphere with which the lapse of nearly forty years surrounds them.

There was no dispute as to the recovery of the judgment in the superior court, but it is insisted that the execution, by virtue of which the sale took place, was not proved.

Conceding that the recitals of the sheriff’s deed are not sufficient, proof on the subject (Anderson v. James, 4 Robt., 35; Jackson v. Shepard, 7 Cow., 88), yet here was direct and affirmative proof by the sheriff that the recited writ was issued and delivered to him, and that he made the sales under it; and this proof was corroborated by the production of the official entries of the delivery of the execution made contemporaneously in the register of the sheriff.

We do not think this proof falls within the cases cited.

The neglect of the sheriff to return the execution, and its probable loss through the carelessness of his deputy, ought not to be held to affect rights acquired by purchasers at a sale regularly made under the writ.

This would be to put titles acquired at sheriff’s sales at the mercy of the subsequent neglect of that officer.

We think the first objection of the defendant was ■ not well taken.

The second and third objections both relate to the assignments of the certificates of sale, and the failure to properly prove and file them.

All the assignments except the last were made before the passage of the act of 1835.

They were valid instruments when made, and undoubtedly carried to the assignees all the rights acquired or evidenced by the certificates of sale.

The act of 1835 did not in any wise invalidate those instruments; and the last clause of the second section of that act' expressly provided that it should not be necessary to have acknowledged the execution ‘ of any assignments theretofore made.

The act of 1835 took effect on May 22, and as the sheriff s deed bears date on May 28, it is more than probable that the provisions of the act had not come to the notice of the parties.

However this may be, the act of the sheriff in executing the deed, reciting'the several assignments and recognizing the rights of Mrs. Wiswall under them, must be deemed a waiver on his part of his right to insist on the proof and filing of those instruments.

The principal object of the statute of 1835 was the protection of sheriffs by creating a statutory mode by evidencing the claims of assignees, without which a sheriff could not be compelled to convey to such assignee.

The sheriff could waive the protection of the statute, and if he did so, and conveyed to an actual assignee, the title of his grantee would not be affected by the omission to prove and file the assignment of the certificate (Wood v. Morehouse, 45 N. Y., 368; 1 Lans., 405; Bank of Vergennes v. Warner, 7 Hill, 91; Canfield v. Westcott, 5 Cow., 269; Chautauque Bank v. Risley, 4 Den., 484; People v. Ransom, Id., 147). We do not consder the case of People v. Ransom (2 Comst., 490), to hold any different rule.

That case substantially holds that a sheriff cannot be compelled to. convey without compliance on the part of any assignee with the statute of 1835, but it does not decide that a conveyance by the sheriff without such compliance would not convey a good title.

We are of opinion that the substantial contents of the several asssignments were sufficiently and properly proved by the recitals of the sheriff’s deed (Wood v. Morehouse, 45 N. Y., 368), and that their execution and existence at and before the execution of the deed, and their loss or destruction, were satisfactorily shown by the sheriff.

The findings of the réfere'e were therefore sustained by competent evidence.

The judgment should be affirmed, with costs. 
      
       Present, Ingraham, P. J., and Davis, J.
     