Den on demise of Smith v. Low, 27 N.C. 197, 5 Ired. 197 (1844)

Dec. 1844 · Supreme Court of North Carolina

27 N.C. 197, 5 Ired. 197

DEN ON DEMISE OF FREDERIC SMITH vs. JOHN LOW.

The return or certificate of a ministerial officer, as to rvhat he has done out of court, is only to be taken as prima facie true, and is not conclusive; it be contradicted by any evidence and shewn to be false, antedated, &c.

Appeal from the Superior Court of Law of Guilford County, at the Fall Term, 1844, his Honor Judge Pearson presiding.

In this action of ejectment, the lessor of the plaintiff claimed under a justice’s execution, returned to May Term, 1839, with a levy endorsed, as having been made on the 3d of May, 1839. The case was continued to the next August Term. The notice required by law was given and returned to August Term, 1839, and the order of sale was entered at November Term, 1839, under which the sheriff sold the land.

The defendant claimed under a deed of trust, executed on the 18th of May, and registered on the 20th of May, 1839, which was the Monday of May Term of the County Court. The defendant offered to prove, that, in fact, the levy was not made on the 3d of May, as returned by the officer, but was made on the 21st of May, being Tuesday of the May Term, and was then endorsed by the officer, and antedated. The plaintiff’s counsel objected to the evidence, insisting that the time of the levy was a matter of record. The court admitted the evidence. The jury having returned a verdict in favor of the defendant, and judgment being rendered pursuant thereto, the plaintiff appealed to the Supreme Court.

1 H. Bryan for the defendant.

The execution being returned became a record; Pigott v. Davis, 3 Hawks, 25.

The time of the levy is an essential and integral part of the levy, and cannot be explained or contradicted; with regard to justices executions, the time is most material.

But the court to which the levy was returned, had received it as true, and had adjudicated upon it necessarily in making order of sale; and that, being a judicial proceeding, can-po.t .be impeached collaterally,

jf the return be false, the officer is responsible. If erroneous or mistaken, the court to .which the return is made, should be moved to permit it to be corrected and amended. Sneed v. Rhodes, 2 Dev. & Bat. 386.

J. T. Morehead for the defendant.

The evidence was properly admitted to show the true date of the levy of the execution, by the constable, under which the plaintiff claims. The act does not require that the officer should indorse the date of his levy, (Rev. Stat. chap. 62, sec. 16,) it only becomes so by implication ; Beckendite v. Arnold, 3 Hawks, 296.

The date of issuing a writ indorsed on it by the clerk, may be rebutted by parol evidence ; Boyden v. Odeneal, 1 Dev. 171.

The levy of an execution, is an act in pais, and the truth .of it may be impeached.; Loflin v. Huggins, 2 Dev. 10.

How and in what manner a levy is made, may be shown by-evidence aliunde; Borden v. McKinnie, 4 Hawks, 279. Slate v. Poor, 4 Dev. & Bat. 384.

Daniel, J.

We are of opinion that the decision of the Judge was right. The records of a .court, professing to state the judicial transactions of the said court itself, cannot be contradicted by parol evidence or any other proof, for they import verity in themselves. Bui the acts and doings out of court of a ministerial officer, as the clerk in issuing writs, constables and sheriffs in making returns on warrants, writs, &c., although required by law to be returned into a court of record, are only prima facie to be taken as true, and are not conclusive evidence of the truth of the things they write ; they may be contradicted by any evidence, and shown to be false, ante, dated, &c.

Per Curiam, Judgment affirmed.