Opinion
(December Term, 1844.)
The return or certificate of a ministerial officer as to what he has done out of court is only to be taken as prima facie true, and is not conclusive; it may be contradicted by any evidence and shown to be false, antedated, etc.
APPEAL from GUILFORD, Fall Term, 1844; Pearson, J.
J. H. Bryan for plaintiff.
J. T. Morehead for defendant.
Ejectment. The lessor of the plaintiff claimed under a justice's execution, returned to May Term, 1839, with a levy indorsed as having been made on 3 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 18 May, and registered on 20 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 3 May, as returned by the officer, but was made on 21 May, being Tuesday of May term, and was then indorsed 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.
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. But 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, etc., 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, antedated, etc.
PER CURIAM. No error.
Cited: Patterson v. Britt, 33 N.C. 390; Simpson v. Hiatt, 35 N.C. 472; Walters v. Moore, 90 N.C. 47; Curlee v. Smith, 91 N.C. 179; Forbes v. Wiggins, 112 N.C. 125.
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