
    Lewisburg.
    
      Robinett v. Preston’s heirs.
    
    (Absent Brooke, J.)
    1847. July Term
    1. On the trial of a writ of right, the demandants claimed under a patent posterior in date to that with which the tenant sought to connect himself, and the demandant’s title had no privity with, but was adverse to the title which the tenant claimed. The tenant deduced the title regularly from the patentee to L H; and proved that by the laws of Tennessee, in which State the land in controversy was then supposed to lie, writs of fieri facias might be levied on lands, and the same be sold by the sheriff who was authorized to make a conveyance to the purchaser. That a judgment was rendered against L H in favour of J R by the Court of the county of H, in Tennessee, at the August term 1800; and that A N, sheriff of IT, by his deed duly executed, after reciting that by virtue of an alias fieri fiadas, dated the 11th of July 1801, in the name of J R against L H, which issued on said judgment, he had levied upon and sold said land to J II, conveyed said land to said J H, under whom the tenant claimed. That the tenant and those under whom he claimed had been in the actual possession of said land from the year 1816 till the time of the trial in September 1845, undisturbed by L H, or any person connected with the estate conveyed by said sheriff. Held :
    1st. That in this state of facts, a legal presumption of the regular exercise of the authority of the sheriff to sell, would arise, and be accepted instead of proof, even against those connected with the estate conveyed.
    2d. That as against strangers setting up a title adverse to that conveyed by the officer authorized to sell, the recital of such authority as set forth in the'deed should betaken as true; and that it was not incumbent on the tenant, in the state of facts as above set out, to produce any additional evidence of:the authority of said sheriff to sell and convey said land.
    It seems, that for the statute of limitations to be a good defence for the tenant, his possession must be adverse to, and not under the title of the demandants.
    This is the sequel of the case of Robinett v. Preston's heirs, reported in 2 Rob. R. 273. After the cause went back, it came on for trial again in September 1845; and the tenant having deduced his title to the land in controversy regularly from the patent issued by the State of North Carolina to Andrew and David Greer down to Lawrence Horn, then offered in evidence a deed dated the 27th of November 1804, from Alexander Nelson, sheriff of Hawkins county, in the State of Tennessee, to John Hannah, under whom the tenant claimed, for the same land. This deed recites: That by virtue of an alias writ of fieri facias issued from the County Court of Hawkins the 11th day of July in the year of our Lord 1801, returnable to August session 1801, in the name of Joseph Rogers against Lawrence Horn for the sum of 59 dollars 11 cents, and 9 dollars 93J cents for costs and charges, which said writ was founded on a judgment recovered by Joseph Rogers against Lawrence Horn as aforesaid, in the said Court at August sessions 1800; and for and in consideration of 11 dollars to him in hand paid, &c. He then conveys the land to Hannah, and says, “ which said land was taken, by virtue of said writ of fieri facias, by the said A. Nelson, sheriff of Hawkins county, as the property of said Lawrence Horn, to satisfy said judgment, &c.; and after being advertised according to law to be sold by virtue of said execution on the day of August 1801, was then legally bidden and struck off to the said John Hannah, he being the highest bidder, to wit, on the said day of August.” The tenant then proved that said Nelson had been duly elected sheriff of Hawkins county in May 1800, and was sworn an (^admitted as such; and that he continued until May 1802: that by the laws of of fieri facias might be levied on lands, be sold by the sheriff; and that the sherj rity, after the expiration of his term of conveyances of land sold by him as shei office, for which no conveyance had been made* during his term. He also offered in evidence the transcript of a record of the County Court of Hawkins, which shewed that Joseph Rogers had recovered a verdict in that Court against Lawrence Horn for 59 dollars 11 cents, and that on the 4th Monday of May 1801, an execution of fieri facias issued in the name of Edward Watterson against Lawrence Horn for this sum, and 10 dollars 33J cents costs, returnable to the 4th Monday of August; which execution was endorsed “ Rogers v. Horn. Fi. fa. isd. July 11th 1801, to August 1801, came to hand same day, levied on land, and sold to amount of 11 dollars. A. Nelson.” And the tenant then offered to prove by the then clerk of said County Court, that in consequence of the said judgment of 
      Rogers v. Horn, an execution was issued by his deputy clerk for the amount of the debt and costs, bearing test and returnable as is set forth in the sheriff’s deed, by vjrtU0 the said land was sold by the sheriff to Hannah ; but that a clerical error was committed by said deputy clerk, by inserting therein the name of Edward Watterso'n instead of Joseph Rogers; although the endorsement on the back of the execution was Rogers v. Horn. But the Court declined to hear the evidence relating to such clerical error.
    It .was proved by the demandants, that they had been in possession of a part of the land in controversy from 1810 to 1816; and it was proved by the tenant that he had had actual possession and occupancy of the land in 'controversy from the year 1816 to the time of the trial of the cause-, undisturbed by any person connected with the title derived to him from the sheriff’s deed, or by any other person or title, except an ejectment brought against him in 1834 by the present demandants, and the present writ of right; both of which were founded on a title wholly unconnected with that under which the tenant claimed. And it was therefore insisted that the deed being an ancient deed, and accompanied by peaceable and uninterrupted possession, it was sufficient to prove by presumption not only the execution of the deed, but the truth of the recitals thereof; the authority of the sheriff as well as the other recitals. To the introduction of the deed the demandants objected, and the Court sustained the objection; whereupon the tenant excepted; and verdict and judgment thereon having been given against him, he applied to this Court for a supersedeas, which was granted.
    
      The Attorney General, for the appellant,
    insisted that under the circumstances of this case, it should have been presumed that the sheriff had authority to make the sale of the land as recited in his deed. And for this he referred to Bedle v. Beard, 12 Coke’s R. 5; Archer v. Saddler, 2 Hen. & Munf. 370; Bolling v. Mayor of Petersburg, 3 Rand. 563.
    
      Sheffey, for the appellees,
    referred to Rockbold v. Barnes, 3 Rand. 473; Nalle v. Fenwick, 4 Id. 585; Allen & als. v. Smith, 1 Leigh 231; and Chapman v. Bennet, 2 Leigh 329, to shew that the sheriff’s authority for his official acts must be strictly proved. He referred to Tolman v. Emerson, 4 Pick. R. 160, for the rule that a deed appearing on the face of it to have been executed under an authority which is matter of record, is not admissible, however ancient it may be, as evidence of title to land, without the production of the power, or an authenticated copy j and he referred to the evidence to shew that the recitals in the deed were disproved, and that in fact the sheriff had no authority to make the sale.
   Allen, J.

delivered the opinion of the Court.

The Court does not consider it necessary to decide how far it would have been competent to prove that a clerical error was committed by the clerk in issuing the execution in the bill of exceptions mentioned, in the name of Edward Watterson against Lawrence Horn, instead of the name of Joseph Rogers, in whose name the judgment was recovered, it appearing that the demandants claimed under a patent, posterior in date to that with which the tenant sought to connect himself, and that the title which the demandants claimed had no privity with, but was adverse to the title under which the tenant claimed ; and it furthermore appearing by said bill of exceptions, that by the laws of Tennessee, in which State the land in controversy was then sup- • posed to be situated, writs of fieri facias might be levied on lands, and the same be sold by the sheriff, who was authorized to make a conveyance to the purchaser. And it furthermore appearing that the title to the land in controversy held under the senior patent, had been regularly transferred to and vested in the said Lawrence Horn, that a judgment was rendered against the said Lawrence Horn in favour of Joseph Rogers, by the Court of Pleas and Quarter Sessions of the county of Hawkins in said State of Tennessee, at the August term for the year 1800, and that Alexander Nelson, sheriff of said county of Hawkins, by his deed duly executed, after reciting that by virtue of an alias fieri facias, dated the 11th of July 1801, in the name of said Joseph Rogers against Lawrence Horn, which issued on said judgment, he had levied upon and sold said land to a certain John Hannah, conveyed said land to said Hannah, and the tenant offering to introduce evidence to prove the regular transmission of the title, so as aforesaid conveyed by said sheriff to said Hannah, from the said Hannah to himself; and it furthermore appearing, that the tenant proved that he and those under whom he claimed, had been in the possession and actual occupation of said land from the year 1816 up to the time of the trial, undisturbed by the said Lawrence Horn, or any person connected with the estate conveyed by said sheriff; a period of time which would have constituted a sufficient defence under the statute of limitations, against said Horn, if such possession had been adverse to, instead of under the title of said Horn; the Court, without deciding how far it would be competent for strangers claiming under an adverse title, having no privity of estate or interest affected by the sale of an officer authorized by law to sell, and whose deed made, or recited to be made, pursuant to that general authority, is produced, to require proof of the recitals in such deed, setting out the authority to sell; is of opinion, that in the state of facts .set out in said bill of exceptions, a legal presumption of the regular exercise of the authority of the sheriff to sell would arise, and be accepted instead of proof, even against those connected with the estate conveyed: and that, as against strangers, setting up a title adverse to that conveyed by the officer otherwise authorized to sell, the recital of such authority as set forth in the deed, should be taken as true, and that it was not incumbent on the tenant, in the state of facts as set forth in the bill of exceptions, to produce any additional evidence of the authority of said sheriff to sell and convey said land. The Court is therefore of opinion, that the said Circuit Court, under the facts disclosed in the said bill of exceptions, erred in rejecting said deed for the want of such additional evidence of the authority of the sheriff to sell and convey. Therefore, the judgment is reversed with costs, and the verdict is set aside and the cause remanded for a new trial of the mise joined, with instructions to permit said deed from the said Alexander Nelson, sheriff as aforesaid, to said John Hannah, to be read as evidence to the jury, unless objected to for some other good and sufficient cause.

Daniel, J. dissented.  