Burke's Lessee v. Ryan — 1 U.S. 94

Majority

p. 95

Burke’s Lessee v. Ryan.

Syllabus

A sheriff's deed admitted, after a long possession, without producing the record.

Ejectment. On the trial of this cause, in deducing the plaintiff’s title, a sheriff’s deed was produced, but no part of the record therein.

Lewis and Mifflin, for the plaintiff. Sergeant, for the defendant.

Sergeant contended,

that if the title was set forth, it was necessary to prove every part of it; that between the parties, the fi. fa. and vend. exp. may only be shown; but that against a stranger, the pleadings, verdict and judgment, ought to be produced. Gilb. L. of Ev. 9, 10.

On a question from the opposite counsel, Sergeant admitted, that, in New Jersey, it was not the practice to produce more than the sheriff’s deed; but insisted that, of late, it had been frequently required, and that in strictness, it was indispensably necessary. But—

As the possession has gone more than twenty years along with the deed, it is unnecessary, in this case, to require further proof. And the Chief Justice added, that within his knowledge, it had not been customary, in any case, to produce the record,^[1]

(b) (b) After a long possession under a deed, it has been usual to dispense with proof of its due execution. In a recent case, it was said by Judge Duncan, that thirty years possession seems the fixed time, and he intimated that perhaps twenty-one years, the period of limitation, might be sufficient. McGinnis v. Allison, 10 S. & R. 199. See also Arnold v. Gorr, 1 Rawle 223 . The practice, however, with respect to producing the rec- or.l, in the case of sheriff’s deeds (at least, where long possession has not accompanied them), is at present different from that stated by the Chief Justice in the text. It is laid down in many cases, that a sheriff’s deed cannot be given in evidence, without producing the judgment and execution under which he made the sale. See Wilson v. Mc- *96 Veaugh, 2 Yeates 86 ; Hartshorne v. Wright, Peters C. C. 64; Weyand Tipton, 5 S. & R. 332; Hampton v. Speckenagle, 9 Id. 212 . And the rule is the same with respect to a deed of land, sold under an order of the orphan’s court, which cannot be road, without producing the record. Hartshorne v. Wright, Hampton v. Speckenagle, ut supra.