
    Lewis J. Phillips vs. Samuel Schiffer.
    Although the recitals in a sheriff’s deed are not sufficient proof of the issuing and delivery of the execution upon which he professes to have sold property, yet where there was no dispute as to the recovery of the judgment, and there was direct and affirmative proof by the sheriff that the recited writ was issued and delivered to him, and that he made the sale 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; but the writ of fieri facias could not be found in the clerk’s office, and no entry of its return, or of satisfaction, appeared on the docket of the judgment; and the sheriff gave evidence tending to show that it was not returned, and proved that the deputy sheriff having it in charge was a " careless man,” and did not return the writ to him; held that 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.
    Assignments of sheriffs’ certificates made prior to the passage of the act of the legislature of 1836, (Laws of 1836, ch. 189; 4 Mdm. Stat.. 623,) and valid when made, were not invalidated by that act, but carried to the assignees all the rights acquired or evidenced by the certificates of sale; notwithstanding an omission to acknowledge or prove, and file, such assignments.
    The principal object of the act of 1838 was the protection of sheriffs, by ereating a statutory mode of evidencing the claims of assignees, without which, a sheriff could not be compelled to convey to such assignees.
    The sheriff can waive the protection of the statute; and if he does so, and conveys to an actual assignee, the title of his grantee will not be affected by the omission to prove and file the assignment of the certificate.
    Where a sheriff’s Seed recited the sale of the premises by him, to persons named, and the assignment of the certificates of sale, by the purchasers, to other persons, by instruments in writing under the hands and seals of the assignors; and the sheriff 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,- and the certificate and assignment delivered to him; that it was not his custom to keep or file them; and that he destroyed the assignment, after the deed was executed and delivered; held that the substantial contents of the several assignments were sufficiently and properly proved by the recitals in the sheriff’s deed; 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.
    APPEAL from a judgment entered on the report of a referee.
    
      M. A. Kurscheedt, for the appellant.
    I. A party claiming title under a sale of real estate on execution, must prove the execution, by virtue of which the sale took place. (.Anderson v. James, 4 Rob. 35.) The recitals in the sheriff’s certificates of sale, and in his deed, are not evidence of the execution. (Anderson v. James, supra. Jackson v. Shepard, 7 Cowen, 88.) The entry in the sheriff’s register, showing his receipt of an execution, apparently on the Brewster judgment, is no better evidence than the recitals in' the certificates and deed. The register of a sheriff is merely a private book kept by him for his own convenience, and after the termination of his official term is retained by him in his private custody. The certificates of sale and the deed were executed by the sheriff, in the ordinary course of official duty, and are matter of record, while the register is merely his private book. If the former áre incompetent to prove the execution, why should any greater force be given to the latter?
    
      II. The failure to file the assignments of the certificates of sale is fatal to the validity of the sheriff’s deed. (Laws of 1835, ch. 189, § 2. 4 Edm. Stat. 623. The Peoples v. Ransom, 3 Comst. 490.)
    III. Independently of the provisions of the act of 1835, the sheriff could not give a deed to any person other than the original purchaser, unless the latter should have assigned his certificate of sale to the former. Evidence of such assignment is, therefore, necessary, in order to sustain the deed. There is no evidence of any assignment, except the recital in the deed, and the testimony of the sheriff as to his usage in executing deeds, above quoted. Such evidence is clearly insufficient. 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 the respondent.
    I. It being shown that the execution had been lost, and could not be found in its proper place, secondary evidence thereof was properly admitted to prove the fact that it was duly issued to the sheriff. (Leland v. Cameron, 31 N. Y. 115. Bank of North America v. Embury, 33 Barb. 323; S. C., 21 Now. Pr. 14.) The case of Anderson v. James, (4 Rob. 35,) does not conflict, The plaintiff has established the fact that an execution was issued, by the best evidence, whilst in Anderson v. James no attempt was made to prove the existence, or the issuing of any execution, counsel relying for the fact on the bare recital in the sheriff’s certificate. But the certificate is made presumptive evidence of only the facts therein contained which are required by the statute, (2 R. S. 270, § 42,) to wit, a description of the premises, price bid, consideration paid, and the time when the purchaser is entitled to the conveyance. That is all the law requires in a certificate; and the statement of any other fact was consequently immaterial, and certainly inadmissible as evidence.
    II. The sheriff’s certificate of sale was duly assigned to the person to whom the deed was delivered, and the deed was valid and effectual, so as to pass title to such assignee. 1. The sheriff’s testimony is clear and uncontradicted. 2. Besides, the deed recites the various assignments, and the sheriff testifies that it was customary to do so, and that wherever the recitals' occur, the facts actually took place. The sheriff testifies that it was his habit to destroy the assignments of the certificates, after he executed his deed. The presumptions are in favor of the existence of both the fact of the issuing of an execution and the assignments of the certificate of sale, and the recitals in the sheriff’s deed are presumptive evidence of the truth of the facts therein stated. (Wood v. Morehouse, 1 Lans. 405, 406 ; S. C., 45 N. Y. 368. Wood v. Chapin, 3 Kern. 509. Jackson v. Shaffer, 11 John. 513. Hartwell v. Root, 19 id. 345. Sperling v. Levy, 1 Daly, 95. Mosher v. Heydrick, 45 Barb. 549. See also, Clarke v. Lyman, 10 Pick. 47; Boynton v. Willard, Id. 169 ; Caines’ Cas. 18 ; Cowen & Hill's Notes, 297, 362.)
    III. The act of 1835, requiring the filing of the assignments of sheriffs’ certificates, was passed in May, 1835, (after the execution of all the assignments in this case, except the last,) and as it was simply for the protection of the sheriff, it was competent for him to waive its provisions. (Wood v. Morehouse, 45 N. Y. 368. Canfield v. Westcott, 5 Cowen, 270. Bank of Vergennes v. Warren, 7 Hill, 91, 94.)
    IY. Independent of the statute, the assignee had the right, at common law, to a deed on satisfying the sheriff that he had succeeded to the rights of the original purchaser' at the sale. (Bank of Vergennes v. Warren, 7 Hill, 91.) 1. The sheriff was satisfied of the claim of the assignee before and at the time of delivering 1ns deed. 3. In the analogous case of sales under foreclosure, the referee or sheriff executes a deed to the person who exhibits evidence satisfactory to the officer that he is assignee of the bidder, and there is no law to compel the record of this proof. 3. The sheriff is presumed to do his duty. Even in the absence of the sheriff’s testimony as to the facts, the law presumes, until the contrary is proved, that every man obeys the mandates of the law, and performs all his official duties; that everything has been done which the law requires to be done to make the transaction effectual. (Wood v. Morehouse, 1 Lans. 405, 406, 416. Ld. Halifax Case, Buller's Nisi Prius, 298. 12 Wheat. 69, 70. Hartwell v. Root, 19 John. 345. Jackson v. Shaffer, 11 id. 517. Phil. Ev. 151.) The case of The People v. Ransom, (2 N. Y. 490,) does not conflict with these views. That was an action for a mandamus to compel the sheriff to execute the conveyance. The language of the court must be taken with reference to that fact. The case simply maintains the proposition, that before the sheriff can be compelled to execute a conveyance the certificate and assignment must be filed. This is in entire conformity with the distinction which has been pointed out. The court says : “The relator sets forth, in the alternative mandamus, that he has acquired the rights of the original purchaser at the sheriff’s sale—first as an assignee, and secondly, as a subsequent judgment creditor. It is a fatal objection to his claim as assignee that he has not filed the assignment to him in the office of the clerk, &c. The act says, expressly, that before any assignee shall be entitled to a deed he shall cause the assignment, with the certificate or proof of acknowledgment, to be filed.” Ho notice is taken of the case in 7 Hill, 91, and there does not appear to have beeii any intention to overrule it. There is no decision opposed to the Bank of Vergennes v. Warren, (7 Hill, 91,) and there are dicta in several cases supporting it. In 
      Chautauqua County Bank v. Risley, (4 Denio, 484,) it is said that the decision in Bank of Vergennes v. Warren, had been followed in several subsequent cases. The People v. Ransom, (4 Denio, 147,) contains a dictum to the same effect as Bank of Vergennes, &c.
    
   By the Court, Davis, J.

This action was brought to

compel the specific performance of a contract for the sale of three lots on the south-east comer of Eighty-Seventh street and Fifth avenue.

The defendant - refused to accept the conveyance on three grounds: First. Because 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. Second. That the sheriff’s deed to Harriett M. Wisewall was invalid, because executed before said Wisewall had caused the assignments to herself and to other intermediate assignees to be acknowlegd or proved, and filed in accordance with the provisions of section 2, of chapter 189 of the laws of 1835. Third. That the sheriff acted without authority of law in executing the deed of the premises to Harriett M. Wisewall, 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. Wisewall. It was admitted by the defendant that the plaintiff’s title appeared on the records to be perfect in all respects, except for the defects thus specially pointed out.

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 a fi.fa., issued to him out of the Superior Court of the city of Hew York, on the 24th of December, 1832, on a judgment at the suit of Benjamin Brewster v. The New York & Harlem Spring Water Company, in an action of assumpsit, for $384.10.

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 ft. fa., and the purchase by Robert and Underhill, respectively, of parcels of said premises. These- were executed on the 25th day of February, 1833, and filed March 6, 1833.

A deed bearing date the 28th day of May, 1835, by Westervelt, as late sheriff, to Harriett M. Wisewall, was put in evidence. This deed contained full recitals of the fi. fa. in the suit above mentioned; of the sale on the 25th of February, 1833, of the premises ; the purchase by Robert and Underhill, respectively; the assignment by Robert and Underbill, severally, of their right, title and interest in the several lots, and in the certificates of sale to Enoch Wisewall and Francis Price, and the assignment by Price to Harriett M. Wisewall on the 26th day of May, 1835. Each of the several assignments is recited to have been made by an instrument, in writing, under the hand and seal of the assignor, and all except the one to Mrs. Wisewall, bore date prior to May, 1835.

The sheriff’s deed was in due form, and properly acknowledged. Hone of the assignments appear to have been filed in the office of -the clerk of the city and county of Hew York, and none of them were produced.

The sheriff 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, and 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 oí 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 of 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. Wisewall.

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 assignment to Mrs. Wisewall; 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 decided, as a conclusion of law, that the defendant was bound specifically to perform the agreement; and that the plaintiff was entitled to judgment accordingly. Nearly forty years had elapsed between the delivery of ih.ofi.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 Horn whom he derived 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 that subject, (Anderson v. James, 4 Rob. 35. Jackson v. Shepard, 7 Cowen, 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 tp be held tp affect rights acquired by purchasers at a sale regularly made under the writ. This wculd be to put titles acquired at sheriffs’ sales at the mercy of the subsequent negligence of that officer.

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

The secbnd 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 anywise, 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 assignment theretofore made.

The act of 1835 took effect on the 33d day of May, and as the sheriff’s deed bears date on the 38th day of May, 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. WisewaE under them, must be deemed a waiver on his part of his right to insist on the proof and filing of those instruments.

[First Department, General Term, at New York,

March 3, 1873.

Ingraham and Davis, Justices.]

The principal object of "the statute of 1835 was the protection of sheriffs, by creating a statutory, mode of evidencing the claims of assignees, without which a sheriff could not be compeEed to convey to such assignees. 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. Bank of Vergennes v. Warren, 7 Hill, 91. Canfield, v. Westcott, 5 Cowen, 269. Chautauqua Co. Bank v. Risley, 4 Denio, 484. People v. Ransom, 4 id. 147.) We do not consider the case of The People v. Ransom, (2 Comst. 490,) to hold any different rule. That case substantiaEy holds that a sheriff cannot be compeEed to convey without compHance, on the "part of an assignee, with the statute of 1835; but it does not decide that a conveyance by the sheriff, without such compliance, would not carry a good title.

We are of opinion that the substantial contents of the several assignments were sufficiently and properly proved by the recitals of the sheriff’s deed, (Wood v. Morehouse, 45 N. Y. 368,) and that them 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 referee were, therefore, sustained by competent evidence.

The judgment should be affirmed, with costs.  