Duke v. Clark

Citations

• 58 Miss. 465

Syllabus

<p>1. Ejectment. Title by execution sale. Defective return. Proof of proceedings of sale.</p> <p>D., in an action of ejectment against C., adduced in evidence to support his title a sheriff’s deed, reciting that it was made in pursuance of a sale of the land under three executions from different judgments, respectively, against A. He then offered in evidence transcripts in the cases from which the executions issued. The three executions were marked by the sheriff as received on the same day; but on only one of them did the return show the levy upon and sale of the land, the other two being returned as satisfied in full. The defendant objected to the admission in evidence of the transcripts in the two last-mentioned cases, and then the plaintiff proposed to prove that the levy and sale were under all three of the executions, and that the return of “ satisfied in full” on two of them was based upon the sale of the land in controversy. The court sustained the objection. Held, that the plaintiff should have been permitted to prove that the levy and sale were under all three of the executions, as his rights as a purchaser depended upon what was done, and not on. the failure of the sheriff to return a correct statement of it; and the evidence-proposed was not inconsistent with the return made.</p> <p>2. Same. Sheriff’s deed. Prima facie evidence of regularity.</p> <p>In an action of ejectment by the purchaser at a sheriff’s sale under execution,, the sheriff’s deed of the land sued for to the plaintiff is prima facie evidence that everything required by law to be done in the proper exercise of the-power of sale conferred on the sheriff by the judgment and execution was. done.</p> <p>3. Judicial Sale. Not within legal hours. Objection waived.</p> <p>A sale under execution cannot be avoided by one claiming as the grantee of the-execution debtor, by a deed made prior to such sale, on the ground that the sale was made before eleven o’clock A. M. of the day, the time fixed by