
    Childress v. Allin & Ux.
    The judgment under which a sheriff’s sale was made, must he produced as the basis on which execution issued, and which is of itself prima facie evidence of the regularity of the previous proceedings. — 51* 482, and cases there noted.
    So, a sheriff’s deed, which appears on its face to have been officially and legally made3 should not bo rejected when offered as evidence in support of the plaintiff’s title, on the ground that the judgment on which execution issued was defective and not legally rendered.
    The writ of execution and sheriff’s return thereon, in ordinary cases, a»e absolutely necessary to support a sheriff’s sale; but when it is shown that they, together with the other papers of the suit; have been lost or destroyed, a copy of the naked judgment from tha minutes of the court will suffice.
    Appeal from the court of the eighth district, for the parish of Livingston, the judge of the district presiding.
    This is a petitory action in which the plaintiff seeks to recover a tract of 640 acres of land in the possession of the defendants. He sets up as the basis of his title, a sheriff’s sale, and offered in support of it, the deed of sale made by the sheriff, together with a certified copy of the judgment from the minutes of the parish court of Livingston, on which execution issued and under which the sale was made. The sheriff’s deed is in due and legal form on its face.
    There was a bill of exceptions taken to the admission of the judgment in evidence, on the ground that it was rendered without citation and ex parte ; and “ because it purports to make final a judgment by default, when' such default never existed.”
    It was in proof that the suit in which this judgment was rendered had been commenced in the parish court of St. Helena, before the division; and during its pendency the parish was divided, and final judgment rendered in the parish of Livingston, which was taken from St. Helena.
    It was further shown that the clerk was an extremely careless and dissipated man, and that all the papers of the suit, together with the execution and sheriff’s return were lost or destroyed. The judgment here offered was copied from the minute or record book of the court, and is all the evidence [38] of the suit that could be had. The sheriff’s deed is in due form and recites that the sale was made in pursuance of a writ of fieri facias, which was issued on this judgment.
    This case was before the court last June term, and remanded to have this piece of evidence supplied, as it had been omitted to be embodied in the record. See 15 La. Rep. 500.
    And now at this term a duly certified copy of this judgment was produced as follows:
    “ Thomas Geeen Davidson Ho. 4. v. V In this case which was transferred by an "William & Stephen Allin. j order from the parish court at St. Helena, when judgment by default was rendered against "William Allin and Stephen Allin, on May the 26th, 1832. Judgment by default made final this day by law, and evidence being in favor of the plaintiff: It is ordered, adjudged and decreed by this court, that the plaintiff have a final judgment against Stephen Allin for the sum of one hundred dollars, the amount proven to be due to the plaintiff, with five per cent, interest from judicial demand, and all costs of suit.”
    “ Judgment signed the 12th day of February, a. d. 1833.
    Thomas Kennedy,
    P. Judge.”
    The land in question was seized and sold on a writ of fieri facias, which was issued on the above judgment the 15th August, 1834, and one Robert Duncan became the purchaser for $171, and received the sheriff’s deed. Duncan sold by regular conveyance to the present plaintiff for 500 dollars in cash.
    The defendants exhibited no title on the trial, except the original title by which the land was formerly owned, before the sheriff’s sale, and confirmed [39] to Wm. Allin, and by him sold to Stephen Allin, all of which titles passed by the sheriff’s sale under execution against William and Stephen Allin. t
    
    There was judgment for the plaintiff, and the defendants appealed.
    Curry, for the plaintiff,
    submitted the case on the production of an authentic copy of the judgment of the parish of Livingston, under which the land in question had been sold, and which completed the plaintiff’s title. The defendants have shown no title; the judgment of the district court shoidd therefore be affirmed.
    Sennen, for the defendant,
    contended: 1. That the judgment of Dcwidson v, Allin, was improperly admitted in evidence ; and relied on the bill of exceptions in the record.
    2. The judgment is insufficient and defective; and without it a sheriff’s sale cannot be supported. 8 Mart. N. S. 175; 1 La. Rep. 137.
   Simon, J.

delivered the opinion of the court.

This case was before us last year, and was continued to give sufficient time to complete the record. 15 La. Rep. 500. Since then, a duly certified copy of the judgment on which the execution issued, has been procured, and now malees a part of the record. Said judgment shows that a judgment by default was regularly rendered on the 26th of May, 1832, and was made final and signed on the 12th of February, 1833.

Defendant's counsel having objected before the lower court, to the introduction in evidence of the said judgment and of the sheriff’s deed of sale, on the grounds that it was rendered without citation and ex parte; that it purports to make final a default which never existed; that the sheriff’s sale under which the plaintiff claims was not made officially, and that no incipient pleadings ever existed or were proven; the judge a quo overruled the objec[40] tions, and signed a bill of exceptions, which, being particularly relied on by defendant’s counsel, must be first disposed of.

We think the district judge did not err. It was clearly the duty of the plaintiff, in order to make out his case, to produce the judgment which was the basis of the execution under which he claims title to the property in dispute, and we cannot see any reasonable objection to it. This court has often held that a sheriff’s deed could not pass the property of the defendant in execution, unless supported by a judgment; 8 Mart. N. S. 162, 179; and that he who claims under a sale made by virtue of a writ of fieri facial, is only bound to produce the judgment on which it issued, and cannot be required to produce any other part of the record. 6 Id. 462; 3 La. Rep. 212, 214; Id. 12. Such judgment is prima facie evidence of the regularity of the previous proceedings or incipient pleadings, and it is the duty of the party complaining of irregularities in such previous proceedings, or attacking the sale as illegal, to show in what they may consist. With regard to the sheriff’s deed, we are unable to perceive the bearing of the objectionit appears on its face to have been officially and legally made; it is in due form, and we see no reason why it should have been rejected.

On the merits, we are of opinion that the plaintiff has sufficiently made ont his case, and that he is entitled to recover the property described in his petition. It is however true that he has failed to produce the writ of execution and sheriff’s return which, in ordinary cases, are absolutely required to support a sheriff’s sale, hut from the evidence by him adduced to supply the absence of this document, he has shown, and we think, conclusively, that such writ of execution once existed, and that owing to certain circumstances clearly proven and over which he had no control, it has been lost or destroyed together with the other papers of the suit. If the records of a court of justice he lost or destroyed, we are not ready to say that, after their existence [41] and loss are established, the party should not he allowed to resort to the next best evidence which the nature of the case is susceptible of, and that it should not he received; and if written copies of them do not exist, their contents may, if necessary, he established by parol testimony. This the plaintiff has done so far as it could he required of him; he has shown by the then acting sheriff that the execution under which the sale was made, was, after said sale, duly returned to the clerk, and the deed of sale recites the writ and the suit in which it was issued, and considering therefore the proof of the existence of the writ and its subsequent loss as sufficiently established, we feel hound to give to these facts the same force and effect as if the execution itself was before ns; and we come the more readily to this conclusion that the defendants have not in any part of their answer, pointed ont any informality in the proceedings which would in any way give us any ground to suspect their validity. It is now a well settled doctrine in our jurisprudence, in relation to sales under execution, that “ when a purchaser shows a judgment, writ of execution and sale to him under them, made by the proper officer, all previous proceedings by the latter must he presumed to have been correctly made,” and that presumption omnia rseta aeta will exist until the contrary he shown. 9 La. Eep. 542. In this case the defendants have not even attempted to allege any informality in any part of the proceedings previous to the deed of sale; they based their defence upon entirely different grounds which are unsupported by the evidence.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.  