
    James Cockerel vs. John Doe ex dem. Samuel M. Wynn.
    In an action of ejectment, where the plaintiff claims under a sheriff’s deed, he need only produce a copy of the judgment; he is not required to produce the whole record ; more especially is this the case, where it is a judgment of the court in which the suit is brought that is offered in evidence.
    Mere irregularities, either in the execution or judgment, will not affect a purchaser at sheriff’s sale ; they cannot be collaterally inquired into.
    When transcripts of judgments and executions are introduced as evidence, they must be accompanied by the proper certificates ; yet if no objection is made for the want of such certificates, they will be presumed to have existed, though they do not appear in the record.
    A certificate of the register of a land office, that W. C., the defendant in an action of ejectment, had purchased and paid for part of the tract of land in controversy, as appeared by the books of his office ; and that a patent was then in his office, in the name of J. C., assignee of C.; is not competent evidence to prove title in J. C. to the land, being neither a certificate issued in pursuance of any act of congress (How. & Hutch. Dig. 599, § 1), nor the copy of any record in the land office (lb. 605, § 36, 35).
    In error from the circuit court of Noxubee county • Hon. Benjamin F. Carruthers, judge.
    John Doe, on the demise of Samuel M. Wynn, instituted an action of ejectment in the circuit court of Noxubee county, to April term, A. D., 1842, wherein James -Cockerel and Samuel Farmer were made defendants.
    At the April term, A. D. 1845, a trial was had, and the plaintiffs read in evidence a judgment in favor of the Commercial Bank of Columbus, Mississippi, against Jefferson Clements, Reuben H. Grant, and Thomas D. Wooldridge, to which the defendants objected. It was admitted at the trial, that a fieri facias issued upon this judgment. On the 13th of February; 1840, a forthcoming bond taken, signed by Jefferson Clements, Reuben H. Grant, and Itunger Perkins, which was forfeited the 11th of May, 1840; a. fieri facias issued on this bond on the 7th of July, 1841, against the parties to it, and was levied on the land in controversy, and the benefit of the valuation law claimed. The plaintiff then read to the jury a venditioni exponas, issued the 9th of November, 1841, against Itunger Perkins, Reuben H. Grant, and Jefferson Clements, purporting to be issued upon a judgment rendered the 12th of November, 1839, to which the defendants objected;
    1. Because there is no judgment as described in said venditioni exponas.
    
    
      2. Because said venditioni exponas purports to be issued upon a judgment rendered the 12th of November, 1839, which was satisfied by the forfeiture of the forthcoming bond, with Itunger Perkins as security.
    3. Because said venditioni exponas was void, being founded upon no judgment.
    These objections were overruled, and the venditioni exponas, and the sheriff’s return of sale to John J. Beauchamp and Anderson Dabney thereon were read. The plaintiff then read a deed, bearing date the 20th of December, 1841, from the sheriff to Beauchamp and Dabney, executed in pursuance of the sale under the venditioni exponas, and reciting the same judgment. The defendant excepted, 1. because there was no such execution as described in the deed, to support the same; 2. because there was no judgment, as described in the deed; which objections were overruled by the court, and defendants excepted. The plaintiff then offered to read a certificate of William Dowsing, the register of the land office at Columbus, certifying that William Cockerel had purchased and paid for part of the land in question, as appeared by the books in his office, and that there was a patent in his office in the name of Jefferson Clements, as assignee of Cockerel. The defendants objected. 1. Because said register certifies to a fact not coming within his official capacity. 2. Because he certifies as to the contents of a paper not one of his papers, as register; which objections were overruled, and the certificate read. The plaintiff read the minutes of a judgment in favor of Bradford & Martin against James Cockerel, rendered November 3, 1838, in the circuit court of Noxubee county. It was admitted by plaintiff and defendants, that a fieri facias issued on said judgment the 20th of November, 1839; that said fieri facias was levied upon personal property, and a forthcoming bond, with James A. Haynes, taken as surety; that said bond was forfeited the 7th of May, 1840, a fieri facias issued on said bond the 1st of July, 1840, against Cockerel and Haynes; that an alias issued the 11th of January, 1841, with an indorsement of a levy on the land in controversy thereon; that the valuation law was claimed, and no sale made ; that on the 11th of May, 1841, a venditioni exponas issued against Cockerel and Haynes, but describing the judgment as having been rendered the 5th of November, 1838; that the sheriff’s return on this ven-ditioni exponas showed a sale of the lands to Dabney and Beau-champ, on the 5th of July, 1841.
    The defendants objected to any of these executions and their returns being read, but the objections were overruled by the court, and the venditioni exponas, judgment, and indorsement, read to the jury; to all of which defendants excepted. The plaintiff read a deed from the sheriff, executed in pursuance of this last sale, on the 5th of July, 1841, to Dabney and Beauchamp, to the reading of which defendants excepted, for the same reasons that they objected to the deed in the other case. The objections were overruled, and defendants excepted. It was admitted that the land lay in Noxubee county, and that Dabney and Beauchamp executed a deed to the plaintiff.
    This was all the evidence. The jury found for the plaintiff below, and the defendants sued out this writ of error.
    
      Boykin and Crusoe, for plaintiffs in error.
    1. There is no principle better established than where a party relies upon a title acquired under a sheriff’s sale, it is necessary that he should produce a judgment execution and sheriff’s deed in order to sustain a title thus acquired; the only proof offered of the existence of the judgment, was the minutes of the court. To prove a judgment, it is necessary that the original suit and pleadings should be produced, or a transcript of the same. 
      Lehr v. Hall, 5 How. 54. Where a title' is claimed under a sheriff’s sale, it is indispensable to produce the judgment on which the execution issued. 1 Monroe, 154. Again, there was no evidence offered of the existence of any such judgments as described, either in venditioni exponas or either of the sheriff’s deeds. The judgments described in said writs and deeds had been extinguished by the forfeiture of the forthcoming bonds; both the venditioni exponas and the sheriff’s deed describe the original judgment as to date of the rendition of the same; there was no such judgment as appears from the evidence as was described, in either the venditioni exponas or sheriff’s deed. Again, in Jackson, ex dem. Webbs v. Roberts'1 ex’ or s, 11 Wend. 422, the principle is recognized that the fact averred in a sheriff’s deed that property was sold under an execution, cannot be contradicted by parol proof; if this be a correct principle, this fact being averred in the sheriff’s deed could not be denied, and plaintiffs in the court 'below were bound to show a judgment corresponding with the execution under which the sheriff sold. “ Where a purchaser, through sale under a judgment and execution, was as such to recover the property purchased, he must produce the judgment, execution, &c., for they are parts of his title.” Yates v. St. John et al., 12 Wend. 74, 75, 76; 12 Johns. 213; 7 Ibid. 535; 16 Wend. 563; 3 Phil. Ev., Cowen & Hill’s Notes, 1079. “Again, the recital in the sheriff’s deed of property sold under an execution, will not prove the judgment; the judgment itself, as well as the execution, must be regularly proved.” Weyand v. Tipton, 5 Serg. <fc Rawle, 332;. 3 Phillips, Cowen & Hill, 1081. The same principles apply to the objections taken to the admission of the minutes of the judgment in favor of Bradford & Martin against James Cockerel, the vendi-tioni exponas, and the sheriff’s deed in that case.
    2. A copy of certificate of entry by a register will not be received in evidence. Doe ex dem. Freeland _ v. Me Caleb, 2 How. 756. The books of the register being public in their nature, it was competent to prove their contents by a sworn copy. Wooldridge v. Wilkins, 3 How. 367. When the officer who has the custody of the patent refuses to deliver it, parol testimony is not admissible to prove its existence, but a subpoena duces tecum must be applied for. 3 How. 367. Again, a certificate of the register of a land office, not issued in discharge of his official duties, is not evidence. Woods v. Nabors, 1 Stew. 172.
    
      Gray and Jarnagin, for defendant in error.
    1. The defendants below contended, that the venditioni expo-nas and executions were void, because they issued on the original judgments after taking of bond and forfeiture.
    It is unnecessary to discuss this question, or the effect the same would have on the rights of the parties here, inasmuch as such is not the case. It will be seen that the executions are against all the parties to the original judgments, as well as the sureties on the forthcoming bonds.
    The statutes of this state prescribe the form of a fieri facias. This form the clerk undertook to pursue, and if he did not strictly conform to the usual form now in practice of reciting the judgment on forthcoming bond, we respectfully submit that the same is unnecessary. At all events, the defect could not materially affect the right of the purchaser at execution sale, who has alone to look to the regularity of the execution upon its face. As to the form of the execution, see H. & H. 627.
    2. The point raised by the assignment of errors made by the counsel for the appellant, we deem it unnecessary to notice further than to refer to the statutes upon this subject found in H. & H. 599, 605, 610.
    The mere fact that the certificate mentions the patent being in the register’s office, could not vitiate the certificate; but the court would have charged the jury correctly upon that subject, if requested by the counsel for the appellant. The other certificates, as to what appeared on the land office books, were admitted as legal testimony, and it was wholly immaterial whether the patents had issued or not. A person holding a certificate of entry, can maintain ejectment without a patent. So of course can his assignee, under the act of congress, a purchaser directly from him, or one purchasing at sheriff’s sale. H. & H. 599. The issuance of the patent, therefore, was immaterial, and the certificate of such immaterial matter could not constitute a ground for reversal of the judgment.
    3. The last point remaining to be disposed of is this, that the court erred in permitting the judgments and executions to be read without reading the writs and declarations. These are executions on forfeited bonds, and that it seems should settle the question. The sureties became parties to the new judgments, so did the principals. No motion was made to quash the bonds, fieri facias, or writs of venditioni exponas. After the taking and forfeiture of the bonds, it was too late to question the original judgments.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The defendant in error brought ejectment for land, which he had purchased at sheriff’s sale. To prove title in himself, he introduced the judgment, the execution, and the sheriff’s deed.

The first objection is, that the judgment alone, and not the whole record, was introduced. In support of this objection, the case of Lehr v. Hall et al., 5 How. 54, is relied on. That was not an action of ejectment, but an action of debt against an administrator for a devastavit. The judgment was evidently regarded as constituting the foundation of the action. But the judgment was relied on to prove a devastavit, and it was important to show what was in issue.

The precise point now under consideration was raised in Starke v. Gildart & Morris, 4 How. 267. The decree alone was introduced, without the bill and answer, and this was held sufficient. And in Carson v. Huntington, 6 S. & M. 111, we held, that a copy of the judgment and of the venditioni exponas emanating from that judgment, constitute all that is necessary.” That too was an action of ejectment. See also 5 Yerg. 225; 4 Wash. C. C. R. 624, 625.

It is to be remarked, moreover, that this judgment was offered in this court when it was rendered, and in many instances it has been held that the same strictness in proving judgments is not'necessary in such cases. The whole record is open to either party on the trial. The judgment is prima facie valid. If it were void, it could have been easily shown to have been so by the other party.

It is also insisted, that the execution was void, because it issued on the original judgment after a forthcoming bond had been forfeited. This objection is not sustained by the facts disclosed by the record. A levy was made on the land under the execution which issued on the bond, but the sale was suspended under the valuation, law. A venditioni exponas afterwards issued, under which the sheriff sold. This is the only process set out. The due issuance of the preceding executions was admitted by the parties. The venditioni exponas does not seem to be defective, but even if it were irregular, and liable to be quashed, such irregularity does not affect the purchaser under it. Mere irregularities, either in the judgment or execution, present no obstacles in the way of the purchaser; they cannot be collaterally inquired into.

The foregoing remarks apply also to the second judgment introduced. It does not appear whether these judgments were read from the record books, or whether mere copies were introduced. When transcripts only are introduced, they must of course be accompanied by the proper certificate, and this may have been the case, as no objection is made on this ground.

But this further question is raised: to prove title in the defendant in execution, a certificate of the register of the land officer at Columbus was introduced, in which he certifies that William •Cockerel had purchased and paid for part of the land in question, ás appeared by the books of his office, and that a patent was then in the office in the name of Jefferson Clements as assignee of Cockerel.

The statute provides that certificates issued by the register, in pursuance of any act of Congress, shall be taken and received as vesting legal title, so far as to enable the holder to maintain an action thereon; and it is for that purpose made evidence. H. & H. Dig. 599, sec. 1. The certificate was not admissible under this section; it was not founded on any order of survey, donation, pre-emption, or purchase from the United States, nor was it issued in pursuance of any act of Congress. It is a mere certificate that, in the judgment of the register, a certain fact appears from the records in his office. Certifying officers must make exemplifications or abstracts from their records.

The 26th section of the same act, (lb. 605,) makes copies of records, duly authenticated by the land officers, evidence where the original or sworn copies would be admissible. And the 35th section makes such copies admissible as evidence without accounting for the original. This certificate was very clearly not admissible under either of the sections. It does not profess to be a copy from the records. We therefore find no law under which this certificate was admissible, and for this error the judgment must be reversed, and the cause remanded.  