
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1805.
    D’Urphey v. Nelson.
    j&ands are liable to be seized under a fi. fa. and sold to satisfy the debts of deceased persons, by virtue of judgments recovered against their personal representatives.
    Where the execution cannot be produced, the recital thereof, or substance thereof, stated in the sheriff’s conveyance, shall be taken as evidence ® the existence and contents thereof, in connexion with the judgment and the adverse party shall be intitled to take any legal exception to, or advantage if, this evidence.
    In such case, nothing shall be presumed in favor of any sheriff, in contradiction to his own deed.
    Motion for a new trial. Trespass to try titles to land : tried before Wilps, J. in Fairfield district. Plaintiff claimed by descent, iand proved a title in his ancestor. Defendant claimed under a deed from W. R. Davis, sheriff of Camden district, which states the recovery of a judgment against W. D’Uiphey’s administrators, after the death of W D’Uruhey, the ancestor of the plaintiff, from whom he claims, for a debt due by him in his life time, in June, 1791 ; that execution issued pursuant to said judgment, the 19th of April, 1791; that Davis levied the said execution, and that he sold the land in question by virtue thereof, in February, 179(5. It appeared in evidence, that Davis was elected to the office of sheriff in February, 1795. The execution was not produced ; but it was proved, that search had been made for it in the clerk’s office, where it ought to be lodged, and that it could not be found ; and that Davis died several years before the trial. It was objected to the sheriff’s deed at the trial, that it was not evidence which ought to go to the jury, as it was evident to the court, that Davis was not authorized to sell the land under the execution set forth in the said deed ; for it was proved, that he was not elected sheriff until 1795, consequently, he could not levy the execution prior to that year; whereas, it appears by the recital in the deed, that the execution issued in 1791, and must have been returnable long before 1795: therefore, when the levy was made, the writ was functus officio, and insufficient to warrant a levy and sale. But Wilds, J was of opinion, that it might be presumed, that Davis’s predecessor in office, had levied the execution on the land in question ; and that the writ having been turned over to Davis, before sale, he was authorized to finish what had been begun by his predecessor; and directed the jury accordingly, who found for the defendant.
    Evans, tor the plaintiff,
    argued, that 'he finding of the jury was bottomed on a presumption in tavor of the sheriff, in direct contradiction to his own deed. That it was favoring the defendant much lo allow the recital in the deed, under rhe circumstances of the case, to be evidence, of the execution : but if it is admitted for him, it ought to be taken altogether, and not garbled : and if the sheriff shews by his own deed that he bad no authority, it ought not to be presumed that he had. If the plaintiff relies on the recital in the sheriff’s deed, he must be bound by it, according to its true import and operation. If he does not rely on it, he must produce the execution to prove the auihority of the sheriff, if he ever had lawful authority to sell under it. To presume he had lawful authority, upon, the evidence produced, would be to presume against clear evidence So the contrary.
    Smith, and Blanding, for the plaintiff.
    The clerk’s certificate £hafc he has sought for the execution, and that jt has not beau found,, is the best evidence the nature of the case admits of, to prove the loss of the execution ; and as it has been lost in the custody of the law, as the fair conclusion is, it must be supplied by the benignity of the law : and the next best evidence is the recital, or statement of the execution in the sheriff’s deed of conveyance, which ought to be credited as true, unless the same should be discredited by evidence to the contrary. The deed is a little inaccurate, perhaps, in not stating a levy by the former sheriff, before the return of the writ; and it may be presumed that this was done, although the sheriff has omitted to state it; for every thing ought to be presumed, that is not unreasonable, in favor of a public officer, to maintain the legality of acts done by him officially. But, suppose Davis made the levy himself, after the writ was returnable : yet the levy may be supported in favor of a bona fide purchaser, without notice. See 2 Johns. N. Y. Term R. 2ol.
   The court,

(Giibikb, Waties, and Bay, Justices, Brevard, having been of counsel in the cause, gave no opinion)

granted a new trial, on the ground, that the presumption of a former levy by the predecessor of Davis, &c. was inadmissible under the circumstances of the case; and that as it appeared from the evidence produced by the defendant, that Davis had no authority to sell under the execution in question, that he could not convey any title thereupon: and therefore, that the defendants had no right to the verdict in their favor.

Motion granted.

Note. Before the A. A. 1791, the new sheriff was not authorized to finish an execution begun by his predecessor, but the old sheriff might, after his office expired, proceed to sell, &c 1 Salk. 322 1 Bur. 27. If the sheriff had returned that the goods remained in his lianas for wa.it of buyers, either a venditioni exponas lay, if the same sheriff was still in ofiice, or a distringas nuper vicocomitem, if he was ought of office. Cro. Jac. 514 2 Saund. 343. 2 Saund. 71, c. note See 1 Salk. 322 Wils. 271. 2 Saund 47, c. note. See the form of the wr.t of distringo.s nuper mcccomitem. 2 Saund 47, c. Rast 164, a. 6 Mod. 295. The writ of venditioni exponas, gives no authority to the sheriff, but quickens him, compels him to sell See the form of the writ, 3 'auud. 47 in. note. After sale, jft. fa may issue for residue, &c. See Jackson v. Pratt, 8 Johns. 381. The recital of the execution in the sheriff’s deed held >,ot. necessary ; and that a mistake, or variance ill the recital, is immaterial, and affects not the validity of the deed, if there is a sufficient exiting authority to warrant the. sale. Sse 9 Johns. 90.  