
    Nichol vs. Ridley.
    A sale of real estate by a sheriff, is not within the provisions of the statute of frauds and perjuries. The return of the sheriff upon the execution, is a sufficient memorandum to bind the parties.
    In a suit by a sheriff against a purchaser at his sale, (the sheriff having paid the money to the plaintiff in the execution,) the return of the sheriff is evidence.
    The admissions of the plaintiff in an execution, (who was dead,) that the sheriff had paid him the money upon an execution, under which he had sold land, are evidence for the sheriff in a suit by him against the purchaser of the land at 1ns sale.
    This was an action upon the case, brought by Ridley against Nichol. There were several counts in the declaration. The first count alleged, that the plaintiff, Ridley, was sheriff of Williamson county; that as such, an execution was placed in his hands, founded upon a judgment obtained by Samuel J. Ridley against Alexander M. Har-wood; that he levied the same on two certain lots in the town of Franklin, and after having duly advertised them for sale, he exposed them to public sale as the property of said Harwood; that at the said sale, the said defendant, Nichol, was the highest and best bidder, and the same were struck off to him for the sum of six hundred dollars and fifty cents; that the defendant did not pay the money, but requested the plaintiff to do so; that plaintiff, thereupon, paid to Samuel J. Ridley (the plaintiff in the judgment against' Harwood) said sum of money; that he has requested defendant to pay him, but he refused, &c. The other counts were the common counts for money paid, money lent, &c.
    The defendant pleaded non-assumpsit, and the statute of frauds and perjuries.
    Upon the trial, the facts were substantially proved, as laid in the first count of the declaration.
    The plaintiff, in order to prove the payment of the money by him, offered to read in evidence the original execution, under which the property was sold, and the ’ , • ¿ , tt i rr j return thereon, that it was satisfied. He also offered an affidavit or statement, made by Samuel J. Ridley, the plaintiff in said execution, stating that plaintiff had paid him; he also offered other proof of admissions made by said Samuel J. Ridley, that plaintiff had paid him, (it was previously proved that said Samuel J. Ridley was then dead;) to all which evidence, the defendant objected; but the court overruled the objection, and permitted the evidence to be read.
    No deed was ever made to the defendant, (he refusing to receive it,) nor was there any evidence of any written memorandum or writing evidencing the sale, other than the return of the sheriff on the execution.
    The Judge charged the jury, “That the statute of frauds and perjuries did not apply to this cause, and that if it did, a sale by the sheriff in this State was not within it; that to sustain the action upon the counts, the plaintiff must prove payment of the money by him to Samuel J. Ridley, and that by request of the defendant; that the moment a sheriff returned an execution satisfied, it was equivalent to a payment by the sheriff to the plaintiff in the execution, ” &c.
    The jury found a verdict for the plaintiff.
    
      R. G. Foster, for the plaintiff in error.
    
      Washington and Collinsioorth, for defendant in error.
   Peck, J.

delivered the opinion of the court.

In this case three principal questions have been raised and debated.

1. Does the case, as made out in the record, come within the provisions of the statute of frauds and perjuries?

2. Was the original execution and return thereon, being a record of the court where the cause was tried, admissible evidence?

3. Were the admissions of the plaintiff in the execution that he had been paid by the sheriff the amount bid at the sale, proper to be received upon the trial.

As to the first, it is settled that a sale of real estate by the sheriff, is not within the provisions of the statute of frauds and perjuries. 2 Stark. Ev. 607: 2 John. Rep. 248: 8 John. 520: 4 Wheat. 89, n. The execution and return upon it becomes a link in the chain of title.— The return is a memorandum of sale by authority of law, and can always be made available to the purchaser; if good and available for him in procuring his title, he shall not be permitted to. question its efficacy by interposing the statute, when he is sought to be made liable as purchaser of the estate.

As to the second point, it hás been permitted to use the original papers in suits as records, when they were of the same court in which 'the trial was had. When first attempted it had been best to have rejected them, not because they were not the best evidence, but because of danger to the records of the country, doubting, as we do, the propriety of such a practice. We will, how'ever, not reverse for such a cause; the objection does not go to the merits. But it is said the return having been by the plaintiff, could not be evidence for him. The return when made on the writ, and that writ restored to the office whence it originated, as required by law, becomes a record; if, therefore, the returned writ of execution could be used, the return upon it could also. The return is not impeached; all the proof in the cause is consistent with it; it was made for the benefit of him making this objection; it is a link in his chain of title, and if he could use it, presented in this form as evidence for himself, for the same reason it may be offered (where the necessity for it arises) as evidence against him. This objection is therefore not sustained.

Third objection: As to the admissibility of the ad- „ . . , -, missions of the plaintiff in the execution, that the money had been paid by the sheriff.

On the return of the execution the sheriff became bound for the amount bid at the sale; he was subject to a judgment on motion for it; independent of the evidence, the law supposes he had brought the ' money into court with the execution, as he was thereby commanded to do.

If the admission of payment would operate as an es-toppel against the party making it, and save the sheriff on motion for a judgment against him on the return of the execution, for the same reason the admission might be received as a mere make-weight, consistent with the return and duty of the sheriff to pay in compliance with the command in the writ; indeed, it may be said the evidence was plain without it. When offered, it stood with the admission of Nichoi that he had not paid the money. The evidence was no doubt offered out of abundant caution, and as far as it speaks any thing, it is only consistent with what the law inferred, to wit, that as Nichoi had not paid his bid, the other had done it for him, and thereby created Nichoi5s liability in this action.

The evidence could not have misled the jury, if it was even improper. But it is proper evidence (1 Phil. Ev. 53) in the form offered; it established the fact of payment of money by Ridley for the use of Nichoi.

Judgment affirmed.  