
    JANUARY TERM, 1844.
    John Doe, ex dem. Alfred B. Robinson v. William D. Parker and William Parker.
    A certificate of the register of a land office, is evidence of title, under the statute of this State. In an action of ejectment, by the purchaser under an execution against the defendant in execution, no evidence of the title of the latter, at the time of the sale, is necessary. If he acquire an adverse title subsequently, that is matter of proof to be made out in the defence.
    At a sale, under an execution against several defendants, one of the defendants has as much right and may as lawfully purchase as any other person.
    Where a bill of exceptions, setting out all the evidence adduced on the trial, was signed by the Judge then presiding, and a motion for a new trial made and taken under advisement, and afterwards overruled, and a bill of exceptions to the opinion of the Court overruling the motion for a new trial at a subsequent term, signed by a different Judge from that which presided at the trial, this Court, to prevent a failure of justice, will regard the latter bill of exceptions in the same light as if it had been signed by the Judge who presided at the trial.
    It is too late to object to a forthcoming bond after the term to which it is returned forfeited.
    Error from the Circuit Court of Carroll county.
    This was an action of ejectment, brought by the plaintiff in error to the April term, 1841, of the Circuit Court of Carroll county. The defendants pleaded not guilty. On the trial at the October term, 1842, the plaintiff read to the jury a judgment rendered by Ihe Circuit Court of Carroll county, in favor of Thomas Freeland against William D. Parker and Alfred B. Robinson, the execution which issued thereon, the forthcoming bond taken on execution, and the execution which issued on the forfeited forthcoming bond, on which the sheriff returned a sale of the land in controversy to the plaintiff. He then introduced Wm. Booth, who testified that he, as sheriff, by virtue of the execution which issued on the forfeited forthcoming bond, sold the land in controversy to Alfred B. Robinson, the plaintiff The plaintiff then offered to read to the jury a certified copy of the certificate of the register of the land office, of the entry of the land by the defendant, William D. Parker ; and also a transcript of the records of the receiver’s office, at Columbus, to both of which 'the defendants’ counsel objected. The objection was sustained by the Court, and the evidence rejected, to which the plaintiff’s counsebexcepted. The plaintiff’s counsel then offered to read in evidence the sheriff’s deed, which was also objected to, on the ground that one defendant could not purchase at a sale made under an execution against his co-defendant.and himself, which issued on a judgment rendered on their joint and several promissory note ; and that such a purchase, if made, would convey no title ; the objection sustained, and the plaintiff again excepted.
    The plaintiff then offered to prove that Robinson was only the surety of Parker on the note on which the judgment was rendered ; which was also rejected by the Court. It was admitted that the defendants were in possession of the land. The jury found for the defendants ; and the plaintiff moved for a new trial. The motion was taken under advisement, and it appears, by an entry on the record, that “ the opinion of the Court was to be delivered in vacation, as of term time.” On the 15th of December, 1842, the Court delivered an opinion, overruling the motion for a new trial. A bill of exceptions, setting out the evidence adduced on the trial, was signed and sealed by James M. Houry, the Judge who then presided.
    At the April term, 1843, the plaintiff filed a bill of exceptions to the opinion of the Court overruling the motion for a new trial, which was signed and sealed by Benjamin F. Caruthers, the Judge presiding at that term. The plaintiff removed the cause to this Court by a writ of error.
    
      Sheppard, for plaintiff in error.
    The Court before whom this cause was tried, determined that C£ when judgment has been rendered against principal and surety, and the property of the principal is taken in execution, that the surety cannot purchase it at the sheriff’s sale ; ” and in accordance with this opinion, the deed under which the plaintiff derived his title was not allowed to be read to the jury.
    In the first place, it is apparent that the Court was determining not merely the law, but facts, which it was incompetent to do. The plaintiff should have been permitted to read his deed, and the jury charged by the Court according to its opinion of the law.
    I must confess, that I have been unable to find, either in elementary treatises or adjudged cases of law, any rule or principle which would sustain the opinion of the Court below ; and it,seems to my mind that the bare statement of the proposition demonstrates its error. If such were the law, the great inconvenience and injustice which would result from its operation would at once demand its change. It is a matter of common experience and observation, that at judicial or sheriff sales, property is frequently sacrificed for half its value ; and it would be unjust in the extreme to prevent a surety, on whom the onus- of payment may at last fall, from entering into competition with the bidders at such sale for the property of his principal.
    The sheriff can sell property taken in execution to any person who is competent to contract, and the only limitations on such power, are such as are provided on considerations of policy, and to prevent fraud. He cannot purchase at his own sale, and this is the only exception.
    
      2. The Court erred in refusing to allow the copies of records,, from the land office, to be read. How. & Hutch. 610, sec. 35.
    In answer to the objections taken by counsel to the forthcoming bond, I would remark, that it has been decided by this Court, in numerous cases, that such objections must be taken at the return term, or they are waived., Kerningham v. Scanland, 6 How. Rep. 540.
    The principal ground urged, is that, after the words, “ shall, have forthcoming and deliver,” the terra “ aforesaid property” is not inserted.
    This objection could not be sustained even had it been taken at the proper time, as the words omitted are supplied by necessary implication and legal intendment, as well from the apparent intention of the parties as the -nature and objects of the bond. The statute authorizing the sheriff to take such bonds, merely contemplated that the debtor should have the custody of the property until the sale day, and then he should restore it.
    In the case of Bartley & Ferguson v. Yates, Hen. & M.’s Rep. 398, the forthcoming bond omitted to state to whom the property should be delivered. Yet it was held good, because the intent was manifest. Whenever the intention of the parties can be ascertained, we will follow their intent, say the Court. And in cases of doubt, the Court will be astute to ascertain the intent.
    The objections cannot be properly urged against titles acquired under it.
    The bill of exceptions is in every respect taken in conformity with the provisions of the statute. How. & Hutch. 481, s. 8.
    
      Thompson, for defendant in error.
    The first point I make in the cause is,, that the forthcoming bond signed by William D. Parker, Alfred B. Robinson, and William Parker, on which execution issued, by virtue o/ which the land was sold, and bought by Alfred B. Robinson, was void, and the execution and sale under it were void, and the plaintiff obtained no title under his purchase. See the copies of the forthcoming bond in the Judge’s statement of the evidence. There is in the condition of the bond, in the conclusion, the following provision. “ Now therefore, if the above bound William D. Parker shall have forthcoming, and deliver to the sheriff of Carroll county, at the courthouse thereof, on the third Monday in September, next, at 12 o’clock noon, that being the day appointed for the sale of the aforesaid property, to satisfy the above mentioned execution, then the above obligation to be null, &c.” Now we ask, what is it William D. Parker is to have forthcoming and deliver to the sheriff? The bond does not 'state ; but it may be said, it intended to say if he had forthcoming and delivered the above property. Can the law enter into a judgment upon what should have been said, or will it not enter it alone upon what is said?
    2d. The execution being against Alfred B. Robinson, as well as Parker, we contend that Robinson acquired no title under his purchase ; that the money paid by him went to extinguish so much of the debt; that he was entitled to no consideration for it, and in law could receive none, and the sheriff’s deed to him is void. It is true, the plaintiff offered to prove by the sheriff that Robinson was only security for Parker, in the original note, but this we contend could make no difference in law. And even if the fact of his having been security on the note could make a difference in relation to his right to purchase under the execution issuing on the original judgment, yet if the forthcoming bond is goo'd, upon the forfeiture of that, he stands as a principal. And again, as he did not appearto be security, from the face of the note, it is questionable whether that fact could be proved by parol.
    3d. The statute authorizing the Judge to take a motion for a new trial under advisement, and deliver an opinion in vacation, has not, in the present case, been complied with. See How. & Hutch, page 481, sec. 8.
    
      James R. Enloe, on the same side.
   Mr. Justice Clayton

delivered the opinion of the Court.

There are various reasons assigned for the reversal of the judgment in this cause. 1st. That the certificate of the register of the land office at Columbus, was improperly rejected. 2d. That the deed under which the purchasers claim, was also improperly rejected.

The certificate of the land office is expressly made evidence by our statute, H. & H. 599, and we can see no reason which justified its rejection. Indeed, we do not see that it was necessary on the part of the plaintiff in error, or of his lessor, to show the title of the defendants to the premises. They were defendants in the judgment .under which the land was sold, and which was purchased by the plaintiff under the execution. He became the purchaser of all their title. They were afterwards merely tenants at will of the purchaser, and in an action brought by him were not at liberty to set up a right in any third person, or to deny that as to him they were the owners. Jackson v. Graham, 3 Caines, 188; Masten v. Bush, 10 Johns. 224. In an action of ejectment by the mortgagor against the mortgagee, proof of the due execution of the mortgage deeds is the only evidence required. Adams on Eject. 308. So in an action by the purchaser under execution against the defendant in execution, no evidence of the title of the latter at the time of the sale is necessary. If he acquire an adverse title subsequently, that is matter of proof to be made out in the defence. Henderson v. Overton, 2 Yer. 394.

Neither do we see any sufficient reason for the rejection of the sheriff’s deed. The fact that the purchaser was one of the defendants in the execution, cannot vitiate the sale. If he bought and paid for the land, we know of no reason why he should not occupy the same position with any other purchaser.

It is objected, by the defendants in error, that this Court cannot reverse the judgment because of the fact that the Judge who signed the bill of exceptions to the overruling of the motion for a new trial, is not the same Judge who presided at the trial. The case was tried in November, 1842, but the Judge who then presided signed a bill of exceptions setting out all the evidence, but took the motion for a new trial under advisement. The motion was overruled, and a written certificate to that effect was transmitted to the clerk. At the next ter.m, exception was taken to this order. A different Judge was then-presiding, and signed the bill of exceptions. He certified no new fact, but only stated that the motion for a new trial had been overruled. To prevent a failure of justice, this must be regarded in the same light as if it had been done by the Judge who presided at the trial. Indeed, it is the action of the Court which we revise, and the Court is the same, although the Judge may be different.

It is also urged in behalf of the same party, that the judgment upon the forthcoming bond, under which the sale took place, is void, and that consequently no title passed to the purchaser. The objection to the validity of the bond is the same which was urged to the bond in the case of John J. Clow & al. v. William A. Sharpe. We there held that the bond was not void, though not formal in its terms. We think that opinion was correct.

The judgment of the Court below is reversed, and a new trial granted.  